Activist Corey Donahue is free, despite supra-judicial ploys to halt his release.

Michael Corey Donahue
DENVER, COLORADO- Occupy Denver veteran Corey Donahue was released from county jail on Thursday, thwarting two surprise court filings to keep the activist in custody for additional months. Donahue had negotiated a global plea deal to serve concurrent sentences for his outstanding charges of inciting public protests in 2011 and 2012.

Yeah, those aren’t crimes, but when you’re an involuntary guest of the Denver jail, your stamina for disputing bogus accusations wanes with every bogus meal. Municipal court judges are as vindictive and perfunctory as the petty officials pressing the original charges. Engaging that crowd is not reciprocal, so it’s especially unrewarding if it means enduring protracted incarceration.

Having cleared his cases and completed the good-behavior obligations of a 9-month sentence for the nut-tap crime, Donahue was due to be released Thursday. But that morning, the Lindsey-Flanagan justice center activated an additional 2012 case which lawyers had been prevented from negotiating because the Division-3D judge withheld it from the docket. Neither private attorneys nor public defenders had been able to compel 3D to address that lingering case number. On Thursday the case mysteriously engaged…

As a result, on Thursday Denver sheriffs demanded a large cash bond and they scheduled Corey for an in-custody court appearance the next day. When funds were rushed to the bonding office, an even larger bond was imposed for a 2011 case specifically stipulated to have been dismissed by the terms of Donahue’s global plea.

Can they fucking do that? No. And yes, everyday. Municipal court despots are not accountable even to their consciences. We’ve seen Lindsey-Flanagan chief justice Martinez confabulate on the witness stand in federal court to suit his duplicitous machinations, and his minions embellished on his lead. Usually their victims, locked in the Van Cise-Simonet Detention Center across the plaza, are powerless to decline their sadism.

Clearing up this clerical error would take until after Christmas, so it seemed more in the holiday spirit to give Denver their blood money and take the courthouse to task afterward, from the relative comfort of being out of custody. WTF.

Who is this El Paso Sheriffs undercover infiltrator provocateur? We don’t care!

El Paso County Sheriffs Undercover OperativeCOLO. SPRINGS– Lawyers for the city are fighting defense team efforts to expose who, how, when and why local law enforcement agencies infiltrated a campus political activist group. The 2017 undercover operation was revealed in CSPD bodycam videos, but city courthouse lawyers and judges are preventing the evidence from being made public.

Alerted to the October 17 evidentiary hearing meant to shed light on the bodycam video, journalists and news crews instead witnessed stonewalling by city attorneys but made to look like a disorganized defense. They saw municipal Judge Kristen Hoffecker blame the defendants for not submitting to a sham proceding, when the judge should have confessed that the defense’s subpoenas had not been honored.

Today the city learned that our defense team went around them and served the subpoenas directly, requiring the responsible law agency parties to testify as witnesses at an evidentiary hearing on November 3. Now the city wants to use a November 1 status hearing to quash the subpoenas.

What’s the big deal? The city asserts the confidential identity of its undercovers is a stake. That is of course the least of it.

The city’s own evidence against the defendants, accused of marching in the street on March 26, 2017, documents police officers deciding to issue tickets. What’s clear from the video is that the police issued tickets, not to cite wrongdoers, nor to halt law-breaking, but to 1) “identify everyone”, 2) arrest an undercover agent, and 3) disperse a lawful assembly. It’s all on tape.

When defendants first grasped what they were seeing on the bodycam video, they brought it to the attention of the various municipal court judges who take turns directing the daily court matters. Asked to produce the written reports generated by the officers on the video but missing from the discovery evidence, the judges declined. Asked to subpoena the officers involved, the judges declined. After each defendant’s pro se arguments were rebuffed, one motions hearing after the other, the defendants sought legal help. Actually Judge Hayden Kane II did eventually grant a hearing to look into the video, but he told us he’d already watched it in private and was not inclined to find it relevant, so defendants were not encouraged that his opinion would change.

In the meantime civil rights lawyers were highly interested in the police activity documented by the video. They submitted 20 pages of argument for the dismissal of charges against the defendants, citing outrageous police misconduct in violation of the Code of Federal Regulations, part 23. They requested that the sheriff, the police chief, the commander of CSPD intelligence, and others named and unnamed, be subpoenaed to testify at an evidentiary hearing on October 17. That didn’t happen, as everyone saw. The subpoenas didn’t even go out.

The October 17 hearing misfire was simply the latest of months of attempts by the defendants to bring this story to light.

This time around the city wasn’t given the chance to sit on the subpoenas, they’ve been served directly. On November 1, will Judge Hoffecker invalidate the subpoenas two days before the witnesses are compelled to appear? The question reporters can ask is should she?

The city’s argument will be that the police undercover operation, however illegal, does not have anything to do with the guilt or innocence of the socialists charged with marching in the street. Outrageous police misconduct is a matter for federal court, that’s true. But have a look at the video. Notice that the first marcher fingered for arrest, the only one assigned an arrest team, was the undercover “Mark Jackson.” When the police shouted their warning that all who remained in front of City Hall would be issued citations, their only unequivocable target was Jackson.

Without the motive of arresting Jackson, whether it was to provoke the crowd or to embed their infiltrator, and until the order “LT wants everyone identified”, the police weren’t going to make any arrests. What does that say about the supposed guilt of the accused?

The police had already told the socialists “you’re free to carry on with your rally so long as you don’t step back unto the street.”

What the socialists were doing on March 26 was the essence of protected speech. But senior officers not on the scene had a crime of their own up their sleeves, and they needed an arrest or two to set it into motion.

Should we get to the bottom of this story, or let the city pretend it didn’t happen until the defendants get to turn the tables in federal court?

One presumes that undercover agents are only performing the intelligence function of surveillance, monitoring protest activity for hints of criminal behavior. At worse, we call them agent provocateurs, trying to encourage illegality, and believe that everyday nonviolent activists should know better than to be entrapped into illegal acts.

But undercover officers are much more disruptive than that. Undercovers sow dischord and mistrust among strangers who’ve come together to advocate for a common cause. Infiltrators pit activists against each other and confound organizers with sabotage. They volunteer for responsibilities then drop the ball. They complicate discussions with irrelevant, impractical, or illegal suggestions. When their ideas are rejected they express frustration by demeaning their fellow participants for being unmotivated. When “Mark Jackson” was found out, and it took many weeks for everyone to become convinced he was an undercover, he berated everyone for every personal failing in the book. He accused individuals of paranoia, ineptitude, or lacking courage. “Get back to me when you decide you want to DO SOMETHING” were his parting words.

Police infiltration harms every citizen effort to organize. The Code of Federal Regulations mandates that police agencies have suspicion of real crime before embedding infiltrators.

If CSPD or the El Paso County Sheriff’s Office or the Department of Homeland Security or the Colorado Bureau of Investigation has proof of a crime brewing among the Colorado Springs Socialists, wouldn’t we all benefit to know about it? We would if their motive is truly crime prevention.

The real identities of “Mark Jackson” and his partner “Aimee Walter” doesn’t matter at all. Who they work for is paramount. Are they “with the Sheriffs” or contracted or embedded from another agency? As the video shows, Jackson’s jittery hyperactive behavior while detained in the cruiser doesn’t give one much confidence about who law enforcement is entrusting with a loaded weapon in a crowd they hope to be inciting to riot.

The city’s determination to quash the question of whether or not such evidence exists points to police malfeasance, not the Socialists’.

Justice delayed is justice denied. Colorado Springs police infiltration operations against social justice activism should be brought to heel sooner rather than later.

OCTOBER 27 UPDATE:
According to Judge Hoffecker’s order: November 1st at 2:30pm will be the city’s next chance to quash the subpoenas. If they do not succeed, the evidentiary hearing is scheduled for November 3rd at 8:15am.

Not The People v. Stephen Nalty and Steven Byfield. Right to an Unfair Trial.

Paper Terrorists Tried in Juvenile CourtDENVER, COLORADO– The trial of accused “Paper Terrorists” Stephen Nalty and Steve Byfield began Monday in courtroom 2H of Denver district court. The two face 28 odd charges, from conspiracy, criminal enterprise, to racketeering, brought by the Colorado Attorney General and the FBI.

And they’re defending themselves. In handcuffs.

Don’t worry, they’re holding their own. But already it’s day one and authorities are piling on every disadvantage. On Monday the defendants were cheated of being able to prevent the state from stacking the jury (and the defendants don’t even know it because they weren’t in the courtroom to see it done).

Watching the court clerks and lawyers prepare for the trial, you cannot but admire their civil spirit. In every hearing Nalty and Byfield have declined advisements and refused to recognize the authority of their adjudicators. The two sound like broken records about “oaths” and sovereign stuff, yet the judicial mechanism inches forward. It should of course, because the defendants have been jailed since MARCH.

For six months Nalty and Byfield have been held on $350,000 bonds. Neither of them can afford even the interest on those sums. Of course their indictment and prosecution is a travesty and a misappropriation of public resources, but how else could the state stop their criminal enterprise except to admit wrongdoing itself?

Nalty and Byfield are being railroaded and they’re sure a jury will conclude the same.

The People’s Grand Jury
For the last few years, among a team of eight “sovereign citizen” types, Nalty and Byfield have been serving judges and other public officials with legal papers and liens which achieved no response. Until Colorado’s attorney general enlisted the FBI to squash the “criminal enterprise.” The sovereigns face 28 charges of all the racketeering and conspiracy lingo, essentially for questioning why their local magistrates and officials had no oaths or bonds on file. When the sovereigns got no response, they formed a “People’s Grand Jury” to indict the violators with their ad hoc public courts. Then they’d file commercial liens against those accused for defrauding the public in violation of Article 6 of the US constitution.

When confronted from podiums, judges and lawmen dismiss the oath requirement out of hand, but it’s interesting that none spell out exactly what law supersedes the US Constitution. News articles about the Paper Terrorists list the litany of criminal charges the defendants face, but have yet to mention the asserted law-breaking which is the Paper Terrorists’ only complaint.

It is hard to get a handle on what the “People’s Grand Jury” really wants. In their dreams, they assert that the lack of filing of oaths should mean that all affected legal judgements should be overturned, and that all salaries drawn by government employees who did not file oaths or bonds should be returned to taxpayers, with interest. They calculate the total sum owed to the American people is in the multi trillions. So there’s that.

Some of the public officials targeted by the People’s Grand Jury began to suffer strikes against their credit records when they didn’t contest liens filed against them. You’d think the credit monitoring algorythms would flag multi billion dollar liens. You’d think someone could suggest a method to filter such paralegal filings.

Instead the state chose to hit back hard. Last March, the eight troublemakers were indicted for two dozen paper crimes. The state imposed bonds averaging a quarter million each. It hasn’t stopped the crew, as their wives and friends keep serving more notices and liens. So now the state intends to make them examples and imprison them for life.

Jury Selection, Only For the Prosecution
Here’s what happened Monday during jury selection, when both sides are meant to parse a jury pool to pick an impartial jury. You know, a defendant’s right to a jury of their peers?

Nalty and Byfield still don’t know what hit them. The prosecution was given the jurors’ details, the defendants learned none. They blindly accepted jurors whom the prosecutors had already carefully weeded. The defendants never knew it and the court was not “on the record” when this happened because it was before the judge entered the courtroom. But audience members saw the whole thing.

Actually, once he was presiding over the entrance of the jury pool, the judge was in a position to observe the prosecution desk already progressing well through the jury questionnaires while the defendants sat idle. Perhaps the judge didn’t know his court clerk had provided no instruction to the defendants. Ultimately whose responsibility would that be?

Monday for jury selection, the court decided it needed a jury pool of SIXTY from which to choose twelve jurors plus two alternates. To save time, the court had prospective jurors fill out 4-page questionnaires instead of having them deliver the customary recitation of their biographical details. The court assigned four digit non-sequential numbers to each candidate. Copies of these forms were made for all parties, stacked according to the seating order of the jury pool. They were put on the desks before sheriffs had brought in the defendants. The team of four prosecutors began pouring over the questionnaires and were warned by the court clerk not to get them out of order as it corresponded to how the jury pool would be admitted.

Team leader, Assistant AG Shapiro noticed that the forms bore the jurors’ signatures, which he instructed should be blacked out from the copies provided to the defendants. Two clerks set themselves to redacting the stacks for defendants Nalty and Byfield. Meanwhile the prosecution studied the forms, made their notes, and drew each other’s attention to details. This information included the applicants’ names and signatures. Trial lawyers do not discount surnames and autographs as irrelevant to evaluating a juror.

When the clerks finished their redactions there were still other courtroom delays and by the time the defendants were finally brought back from their holding cell, the prosecution had a full half hour head start studying the questionnaires, and of course twice the pairs of eyes.

The defendants were not told what the stacks were, nor that they were in any order. The defendants had barely been seated before the judge made his entrance and the jury pool was paraded into the courtroom. The defendants thus got no time to examine the questionnaires. They looked at the stacks dumbly, not knowing what they were supposed to do with them, or how, with their wrists in handcuffs. Defendant Byfield tried to shuffle through some of forms while the judge advised the jury pool. With shackles on he couldn’t manage the stack, much less keep it in order, even if he knew that would matter. Forget managing pen and paper, in addition to taking notes.

You’d hope that jurors will wonder why these “paper terrorists” are kept shackled. Who has ever asserted they pose a threat of violence to anyone?

On the other hand, if you doubt that the failure to file a public oath should earn a prosecutor the accusation of fraud, if you doubt it means they’re untrustworthy, the unfairness they eagerly exploited on the first day of trial would give you pause. They behaved every bit as corrupt and mendatious as Nalty and Byfield have been saying. How unfortunate the jury didn’t see it.

DPD commander reveals arrest threat is a regular “ploy” to disperse protest

DENVER, COLORADO- We heard on Friday that US judge William Martinez needed more time to craft an opinion on a temporary injunction of DIA’s enforcement of their free speech permit. He commited to a decision early this week, and frankly we don’t know what to expect. From challenges he posed to attorneys at Wednesday’s hearing, the judge appears to think DIA needs some degree of “notice” about potential disruptions. He is unlikely to rule against the permit altogether because he opened the hearing already proclaiming that DIA is a “not a public forum” and thus has discretion about what expression to allow. DIA can limit subject matter, but not viewpoint, and can constrict assemblies. Judge Martinez’s starting point was based on US Supreme Court precedent set at JFK and Dulles airports, ignoring that both of those facilities are decentralized and lack DIA’s literal public square. Ironically, neither JFK or Dulles attempted to quash their Muslim Ban protests as did DIA. I’d like to mention some other details revealed at the preliminary injunction hearing.

For starters, the person in charge of approving permits has a highy subjective attitude about viewpoint. To him, pro-military messages are not oints of view at all, they’re just patriotic. They don’t require permits. Also, his department hasn’t declined to issue permits. They work with applicants to arrive at accommodations suitable to the airport. For example, the American Islamic Society was recently granted a permit, the airport requires they limit their participant numbers to FOUR.

DPD Commander Tony Lopez explained why he needs advance notice of protest actions, to be able to schedule officers without having to pay short-notice overtime. Lopez revealed that his optimal staffing numbers are a one to one ratio with activists. Small wonder he was demoted to DIA from downtown District Six. Lopez also testified that he often threatens to make arrests “as a ploy” to make a crowd disperse. And “it usually works” he said. A next step is to mobilize his officers to appear to be targeting particular activists, to increase the intimidation, without an actual intention of making arrests, or justifying them. His testimony confirmed what I described to the court, of officers often threatening to arrest us, even when they had no legal basis, and telling us we needed a permit when none was required.

From the attitude of the city attorneys and the DIA personnel, one became uneasily aware that administrators don’t even blink at sacrificing civil liberties for the interests of security. If airport surveillance can’t size you up as either a traveller or meetor-greetor, they can’t predict your behavior and you’ve suddenly become a security risk. Airport customs and TSA lines are already areas inhospitable to personal freedoms. Apparently airport managers would like all their hallways and public centers to be as restricted. If cops had their way, public streets and sidewalks would be single-purpose conduits as well.

We await a federal judge’s ruling for now, with optimism in judgement superior to that of petty administrators, city lawyers and police. Seeking protection from the courts is contigent on the premise that if needed, the wisdom of the US Supreme Court could be brought to bear. Of late it’s hard to regard those justices as the brightest minds or uncorrupted. We have the Citizens United decision as an example. To which I would add, the terrible compromise that airports are not public forums.

As President Trump considers a follow-up executive order to replace his first Muslim Ban now stymied by the courts, it’s interesting to note we just marked the anniversary of FDR’s order to put Japanese-Americans, the “others” of his day, into internment camps. The supreme court of his day upheld his order. Technically that legal precedent still stands.

Denver judge rules BEING HOMELESS IS IRRELEVANT to defendants charged with violating city’s urban camping ban

DHOL defendants with attorney Jason Flores-Williams
DENVER, COLORADO- A hearing was held today to review motions submitted before the criminal trial of three homeless activists arrested last November for violating Denver’s Urban Camping Ban. Terese Howard, Jerry Burton, and Randy Russel featured in the infamous 2016 video that showed Denver police officers confiscating their sleeping bags and blankets on the snowy steps of city hall. Through attorney Jason Flores-Williams, fellow Denver Homeless Out Loud (DHOL) activists have filed a civil lawsuit to halt the city’s homeless sweeps. In municipal court DHOL hopes to challenge the ordinance being used to harass, displace and imprison the downtown homeless. Already the city’s case appears to be derailing based on developments at the motions hearing. Denver municipal court judge Kerri Lombardi approved all the city’s motions and none for the defense. Lombardi approved the use of 404B evidence for the city, but simultaneously restricted Res Gestae evidence for the defense. In particular, she refused to qualify two experts on homelessness, precluding the accused from arguing a “necessity defense”. Judge Lombardi stated that being homeless was irrelevant to whether they were violating the urban camping ban. When asked to recuse herself, the judge declined, so attorney Flores-Williams declared his intent to file an interlocutory appeal to bump the case to district court. Meanwhile speedy trial was waived and a new court date was set for April 5th.

DHOL’s 2/17 press release:

Yesterday there was a dispositive motions hearing in the Camping Ban criminal cases where homeless and poor people are being charged with crimes for sleeping on the streets with blankets and shelter in Winter. The hearing was noteworthy for the bias and prejudice shown toward Defendants by the Court.

1) At the start of the hearing, prior to any argument, the Judge looked at Defense counsel and said: “The one thing I don’t want is any drama from you, Mr. Flores-Williams.” Defense counsel had never practiced in this court.

2) Without allowing any substantive legal argument, the Court ruled that it was permissible for theProsecution to file a 34-person witness list eight days after the court’s deadline and only two weeks prior to trial.

3) The Court then Excluded all of Defense’s expert witnesses without hearing or testimony, saying that “Homelessness has nothing to do with this case.”

4) The Court then ordered Defense counsel to limit all arguments so that no argument or line of questioning could be construed at trial as an attempt to persuade the jury that the Camping Ban ordinance is itself unjust.

5) At this juncture, defense counsel cited to Fed R. 37(c)and its CO equivalent concerning the prejudice resulting from late disclosure of witnesses. No court response. Defense counsel then quoted from sections from Chambers v. Mississippi, a landmark 1973 civil rights case concerned with due process in which the overall prejudice to defendants becomes so cumulative and egregious that defendants fair trial rights are eviscerated. No response.

6) The Court then took up a Motion from the prosecution that does not exist. A “Res Gestae/404(b) Motion” that wrongfully conflates two different types of evidentiary concepts and underlying analyses. Res Gestae is concerned with the natural narrative of a case. Example: someone robs a liquor store, the fact that they stopped at two bars and to pick up their weapon on the way to the robbery. 404(b)has to do with a very specific set of factors that a defendant leaves at various crime scenes as identifiers. Not to be rude, but the classic example is when serial killer leaves identifiers at numerous crime scenes showing his m.o. The court conflated these two very different legal concepts and construed the “Res Gestae/404b” motion as allowing the prosecution to offer proof of Defendants’ mental states, but not the fact that defendants were homeless. (If this seems like 2+2=5, Wintston, they are….)(The court also disregarded that the motion was filed late and that it was amended without leave of court.)

7) Defense counsel then objected to the fact that the court had asked the prosecution for their jury instructions without asking defense for their jury instructions, and now was reverse injuring the court’s ruling from the prosecutions jury instructions. Objection overruled.

8) Defense counsel made oral motion for the judge to recuse, i.e. that he Judge take herself off the case for bias against defendants. Denied.

9) Defense counsel cited to several cases concerning due process rights, wrongful exclusion of defense witnesses, and the right to fairly address criminal accusations. No response.

10) Defense requested findings of law and fact – none given.

11) Defense counsel asked for a stay of the proceeding to file an interlocutory appeal regarding the court’s rulings.

12) Court stated that interlocutory orders cannot be appealed from municipal court so that none of the court’s decisions are reviewable.

13) Court ruled that the prosecution’s disclosure of 95 police body cameras three days prior to the hearing was permissible, then scolded defense for not reviewing the 95 videos prior to hearing. Defense counsel, concerned that the court would issue sanctions if he responded, had no comment.

We are now seeking an interlocutory appeal of the Court’s rulings.

The trial is scheduled for April 5th, 2017. Mark your calendar.

Occupy v. Martinez (Plaza Protest Ban) 2016 US 10th Circuit Court of Appeals Decision AFFIRMING Prelim Injunction


Yesterday I published the federal judge’s order to grant the 2015 preliminary injunction against the Lindsey Flanigan Courthouse. Since that time the city motioned to dismiss, there were show cause hearings, and depositions, and an appeal to the 10th Circuit Court of Appeals. On April 8, 2016 the appeals court AFFIRMED the preliminary injunction. As a result this legal action is on the road to becoming a permanent injunction, to be decided at trial this April. The prospects look promising, based on how the appelate judges schooled our First Amendment adversaries. I’m reprinting their full decision below.

In particular you might enjoy Judge McHugh’s citing of US Supreme Court Justice Owen Roberts, writing in 1939 for the majority, in a decision to uphold public first amendment rights in Hague v. [AFL-]CIO. Robert affirmed that streets were traditional free speech areas:

“Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens. The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but it must not, in the guise of regulation, be abridged or denied.”

Here’s the full 2016 opinion rejecting Denver’s appeal of our federal injunction:

Document: 01019599889 Date Filed: 04/08/2016

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

_________________________________

ERIC VERLO; JANET MATZEN; and FULLY INFORMED JURY ASSOCIATION,

Plaintiffs – Appellees,

v.

THE HONORABLE MICHAEL MARTINEZ, in his official capacity as Chief Judge of the Second Judicial District,

Defendant – Appellant,

v.

THE CITY AND COUNTY OF DENVER, COLORADO, a municipality; ROBERT C. WHITE, in his official capacity as Denver Chief of Police,
Defendants – Appellees.

_______________

FILED ?United States Court of Appeals Tenth Circuit

April 8, 2016

Elisabeth A. Shumaker Clerk of Court

No. 15-1319

_________________________________

Appeal from the United States District Court for the District of Colorado ?(D.C. No. 1:15-CV-01775-WJM-MJW)
_________________________________

Stephanie Lindquist Scoville, Senior Assistant Attorney General, Office of the Attorney General for the State of Colorado, Denver, Colorado (Cynthia H. Coffman, Attorney General; Frederick R. Yarger, Solicitor General; Matthew D. Grove, Assistant Solicitor General; Ralph L. Carr, Colorado Judicial Center, Denver, Colorado, with her on the briefs) for Defendant – Appellant.

David A. Lane, Killmer, Lane & Newman, LLP, Denver, Colorado, for Plaintiffs – Appellees.

Wendy J. Shea, Assistant City Attorney; Geoffrey C. Klingsporn, Assistant City Attorney; Evan P. Lee, Assistant City Attorney; Cristina Peña Helm, Assistant City Attorney, Denver City Attorney’s Office, Denver, Colorado, filed a brief on behalf of Defendants – Appellees.
_________________________________

Before BRISCOE, McKAY, and McHUGH, Circuit Judges.
_________________________________

McHUGH, Circuit Judge.
_________________________________

This is an interlocutory appeal challenging the district court’s grant of a preliminary injunction, enjoining in part the enforcement of an administrative order (Order) issued by Defendant-Appellant Judge Michael Martinez, acting in his official capacity as Chief Judge of the Second Judicial District of Colorado (Judicial District). The Order prohibits all expressive activities within an area immediately surrounding the Lindsey-Flanigan Courthouse in Denver (Courthouse). Plaintiffs-Appellees Eric Verlo, Janet Matzen, and the Fully Informed Jury Association (collectively, Plaintiffs) sought the preliminary injunction to stop enforcement of the Order against their expressive activities. Following an evidentiary hearing, the district court enjoined enforcement of a portion of the Order as against Plaintiffs. The Judicial District now appeals.

Based on the arguments made and evidence presented at the preliminary injunction hearing, we hold the district court did not abuse its discretion in granting Plaintiffs’ motion in part. Although we affirm the district court’s order granting a limited preliminary injunction, we express no opinion as to whether a permanent injunction should issue. Instead, we provide guidance to the district court and the parties regarding the factual inquiry and the applicable legal standard relevant to that question on remand.

I. BACKGROUND

The genesis of this case is an incident involving nonparties. On July 27, 2015, two men were distributing pamphlets on the plaza outside the Courthouse (Plaza). The pamphlets contained information about jury nullification, a practice in which a jury refuses to convict a defendant despite legal evidence of guilt because the jury members believe the law at issue is immoral. 1 Both men were arrested and charged with jury tampering in violation of Colorado law. See Colo. Rev. Stat. § 18-8-609(1) (“A person commits jury-tampering if, with intent to influence a jury’s vote, opinion, decision, or other action in a case, he attempts directly or indirectly to communicate with a juror other than as a part of the proceedings in the trial of the case.”).

———
1 Jury nullification has been defined as “[a] jury’s knowing and deliberate rejection of the evidence or refusal to apply the law either because the jury wants to send a message about some social issue that is larger than the case itself or because the result dictated by law is contrary to the jury’s sense of justice, morality, or fairness.” Jury Nullification, Black’s Law Dictionary (10th ed. 2014).
———

Plaintiffs, like the men who were arrested, wish to distribute literature relating to and advocating for jury nullification to individuals approaching the Courthouse who might be prospective jurors. Fearing they too would be subject to arrest, Plaintiffs brought suit against the City and County of Denver and Robert C. White, Denver’s police chief, in his official capacity (collectively, Denver) to establish their First Amendment right to engage in this activity. On the same day they filed suit, Plaintiffs also moved for a preliminary injunction, seeking to restrain Defendants from taking action to prevent Plaintiffs from distributing jury nullification literature on the Plaza. Two days later, Plaintiffs amended their complaint to also challenge the Order issued by the Judicial District.

That Order, entitled Chief Judge Order Regarding Expressive Activities at the Lindsey-Flanigan Courthouse, states in relevant part:

The Court has the responsibility and authority to ensure the safe and orderly use of the facilities of the Second Judicial District; to minimize activities which unreasonably disrupt, interrupt, or interfere with the orderly and peaceful conduct of court business in a neutral forum free of actual or perceived partiality, bias, prejudice, or favoritism; to provide for the fair and orderly conduct of hearings and trials; to promote the free flow of pedestrian and vehicular traffic on sidewalks and streets; and to maintain proper judicial decorum. Those having business with the courts must be able to enter and exit the Lindsey-Flanigan Courthouse freely, in a safe and orderly fashion and unhindered by threats, confrontation, interference, or harassment. Accordingly, the Court hereby prohibits certain expressive activities on the grounds of the Courthouse, without regard to the content of any particular message, idea, or form of speech.

Prohibited Activities: The activities listed below shall be prohibited in the following areas: anywhere inside the Lindsey-Flanigan Courthouse, including courtrooms, corridors, hallways, and lobbies; the areas, lawns, walkways, or roadways between the Courthouse and public sidewalks and roads; and any areas, walkways, or roadways that connect public sidewalks and roads to Courthouse entrances or exits. This includes, but is not limited to, the Courthouse entrance plaza areas on the east and west sides of the Courthouse as depicted in the highlighted areas of the attached map.

1. Demonstrating; picketing; protesting; marching; parading; holding vigils or religious services; proselytizing or preaching; distributing literature or other materials, or engaging in similar conduct that involves the communication or expression of views or grievances; soliciting sales or donations; or engaging in any commercial activity; unless specifically authorized in writing by administration; ?

2. Obstructing the clear passage, entry, or exit of law enforcement and emergency vehicles and personnel, Courthouse personnel, and other persons having business with the courts through Courthouse parking areas, entrances, and roadways to and from Courthouse and Courthouse grounds;

3. Erecting structures or other facilities, whether for a single proceeding or intended to remain in place until the conclusion of a matter; or placing tents, chairs, tables, or similar items on Courthouse grounds; except as specifically authorized in writing by administration; and ?

4. Using sound amplification equipment in a manner that harasses or interferes with persons entering or leaving Courthouse grounds or persons waiting in line to enter the Courthouse. ?

The Order was accompanied by an image depicting an aerial view of the Courthouse and its grounds, with the areas in which the Order prohibited expressive activity highlighted in yellow (Restricted Areas).

The Courthouse is bordered on its north side by Colfax Avenue and on its west side by Fox Street. Both Colfax Avenue and Fox Street have public sidewalks running along the perimeter of the Courthouse. Immediately to the east of the Courthouse lies the Plaza. The Plaza is bisected by Elati Street, which is closed to traffic other than police vehicles. Elati Street runs through a large circular area (Main Plaza) between the Courthouse and the Van Cise-Simonet Detention Center (Detention Center), which houses pretrial detainees. The Main Plaza contains planters, benches, public artwork, sidewalks, and gravel areas and is suitable for public gatherings.

Of relevance to this appeal are the Restricted Areas, which include an arc-shaped walkway and planter area immediately to the east of the Courthouse. The arced walkway runs from the corner of Elati Street and Colfax Avenue in a curved path across the front of the Courthouse and ends where it intersects with an open area in front of the Courthouse containing planters and benches (the Patio), which also forms part of the Restricted Areas. The Patio provides access to the main entrance on the east side of the Courthouse. Thus, the Restricted Areas encompass only the portions of the Plaza closest to the Courthouse.

The Judicial District opposed Plaintiffs’ motion for a preliminary injunction and, in doing so, defended the Order. In contrast, Denver entered into a joint stipulation (the Stipulation) with Plaintiffs. The Stipulation asserted that the entire Plaza between the Courthouse and the Detention Center—specifically including the Restricted Areas—was “a public forum and any content-based regulations must be narrowly drawn to effectuate a compelling state interest and reasonable time, place and manner regulations.” It further acknowledged that Plaintiffs were entitled to distribute jury nullification literature on the Plaza and pledged that Denver would not “arrest or otherwise charge Plaintiffs for handing out literature regarding jury nullification so long as Plaintiffs do not violate Colorado law or Denver’s Revised Municipal Code when they are handing out their literature.” The Stipulation specifically referenced the Judicial District’s Order, indicating Denver did not “intend to enforce [the Order] as written and will only impose content and viewpoint neutral reasonable time, place and manner restrictions on the use of the Plaza, and/or other exterior areas surrounding the Plaza if Denver determines that a compelling need exists to do so.”

At the preliminary injunction hearing, the parties called only two witnesses. Plaintiffs called Commander Antonio Lopez of the Denver Police Department. Commander Lopez described the Plaza as a public “open space” much like the city’s various parks. He testified that in the five years since the Courthouse opened he has witnessed “more First Amendment activity take place in [the Plaza] than [he] can recall.” Specifically, Commander Lopez described a variety of protest activities “at one point . . . averaging about two or three a week” in the Plaza. He further testified that the Denver Police Department had never taken steps to stop protest activity in the Plaza, other than intervening if protesters became violent or otherwise broke the law. Relevant to this appeal, Commander Lopez testified that in his experience, the entire Plaza—including the Restricted Areas—has traditionally been used for First Amendment protest activities. On cross-examination, Commander Lopez acknowledged that the “majority” of the protests in the Plaza occurred closer to the Detention Center, but that he had also seen protests directed at the Courthouse.

The Judicial District called Steven Steadman, administrator of judicial security for Colorado. Mr. Steadman testified that the Order was motivated by concern about anticipated protests of a verdict in a death penalty case being tried at the Courthouse.?Mr. Steadman explained that he met with Chief Judge Martinez to discuss security concerns relating to that verdict and recommended the Judicial District adopt a policy similar to one recently implemented in Arapahoe County during another high-profile capital trial.

Mr. Steadman also testified about the design of the Plaza, including the Restricted Areas. He indicated that the planters, gravel areas, and sidewalks were intentionally designed to “signal to the average user how to find their way, and where you should go and what the main travel ways are.” Mr. Steadman explained that the Patio and arced walkway’s “sole purpose is to allow people, the public, to enter and exit the [Courthouse] without being interfered with.” But Mr. Steadman also stated that, prior to imposition of the Order, protestors—including pamphleteers—were allowed to protest immediately in front of the doors to the Courthouse, provided they did not interfere with ingress or egress from the Courthouse. He explained that the “general response” of protestors was to cease their activities when requested by Courthouse security not to interfere with public access to the Courthouse. Mr. Steadman further testified that no person had ever been arrested for blocking ingress or egress from the Courthouse since it opened in 2010. Important to this appeal, Mr. Steadman acknowledged that Plaintiffs’ activities of passing out jury nullification literature did not present “any security risk” beyond what had previously been tolerated without incident throughout the time the Courthouse had been open.

The district court also accepted a proffer of Plaintiffs’ testimony, indicating that their intent was to approach people entering the Courthouse to discuss quietly the concept of jury nullification and to distribute their literature. Plaintiffs asserted that proximity to the front door of the Courthouse was key to their message because otherwise their intended audience—“people who are going to serve or are in fact serving on juries”—will “very frequently just bypass them” in the designated free speech zone by “walking on one of the sidewalks that is part of the [Restricted Areas].” By contrast, positioning themselves near the front door would allow Plaintiffs “to pass out literature to anyone who wants it” and “if people want to stop and talk about [it], they can then explain to them what the concept of jury nullification is.” Thus, according to Plaintiffs, the Order effectively prevented them from reaching their target audience. Finally, the district court accepted the parties’ jointly stipulated exhibits, which consisted of a series of images of the Plaza and Restricted Areas, as well as a copy of the Order.

Following the evidentiary hearing, the district court granted Plaintiffs’ request for a preliminary injunction. In doing so, the district court relied on Denver’s Stipulation that the Plaza was a public forum and the Judicial District’s position that resolving the forum status was not necessary because the Order “would satisfy even the strictest test.” The district court concluded Plaintiffs had demonstrated a likelihood of success on the merits because, treating the Restricted Areas as public fora, the Order’s complete ban on expressive activity was not narrowly tailored to accomplish a significant government interest.

Accordingly, the district court entered a carefully circumscribed preliminary injunction in favor of Plaintiffs. Specifically, the district court enjoined enforcement of Paragraph 1 of the Order against Plaintiffs “to the extent he or she is otherwise lawfully seeking to distribute and/or orally advocate the message contained in [Plaintiffs’ pamphlets]” in the Restricted Areas. But the district court expressly left the remainder of the Order in place.

Following entry of the preliminary injunction, the Judicial District moved to stay the injunction pending appeal pursuant to Rule 62(c) of the Federal Rules of Civil Procedure. In its motion to stay, the Judicial District introduced evidence that— subsequent to entry of the preliminary injunction—protesters had “descended on the Courthouse Plaza” and engaged in a pattern of disruptive and inappropriate behavior, including erecting canopies, harassing citizens seeking to enter the Courthouse, damaging the Courthouse landscaping, yelling and taunting court personnel, and posting signs in the planters and on the flagpoles in the Plaza. The Judicial District argued that a stay of the injunction was appropriate because protesters had been “emboldened” by the injunction to violate even the portions of the Order not subject to the injunction, thereby irreparably harming the Judicial District. The district court declined to stay the injunction, finding the Judicial District had not demonstrated a likelihood of success on appeal because the harm identified was not caused by the injunction. The district court reasoned the Judicial District and Denver were free to enforce the Order against the parties engaging in the complained-of disruptive behavior because such behavior was unlawful and not protected by the narrow injunction issued by the court with respect to Plaintiffs’ activities only.

The Judicial District now appeals. Exercising jurisdiction pursuant to 28 U.S.C. § 1292(a)(1), we affirm.

II. DISCUSSION

On appeal, the Judicial District raises two arguments. First, it asserts the district court erred when it concluded the Plaintiffs had demonstrated a likelihood of success in establishing the Restricted Areas are public fora. Second, the Judicial District argues the district court incorrectly applied strict scrutiny when evaluating the Order. As a result, the Judicial District asks this court to reverse the district court’s entry of the preliminary injunction and remand for further proceedings.

We review the district court’s grant of a preliminary injunction for abuse of discretion. Planned Parenthood of Kan. & Mid-Mo. v. Moser, 747 F.3d 814, 822 (10th Cir. 2014). “A district court abuses its discretion when it commits an error of law or makes clearly erroneous factual findings.” Id.

A. Scope of Review

Before addressing the merits of the parties’ arguments, we pause to clarify the scope of our review. The district court granted a narrow preliminary injunction drafted to address Plaintiffs’ First Amendment concerns related to their specific expressive activities. Although Plaintiffs asked the district court to prohibit enforcement of the entire Order, the court enjoined only the first paragraph, which imposes a complete ban on First Amendment activities—picketing, pamphleteering, protesting—within the Restricted Areas. The district court left in place the rest of the Order, including the prohibitions against obstructing Courthouse entrances, erecting structures, and using sound amplification equipment in the Restricted Areas.

The district court further limited the scope of the preliminary injunction by enjoining the first paragraph of the Order only as to Plaintiffs’ specific pamphleteering activities. In fact, the court enjoined enforcement of the Order only as to Plaintiffs’ distribution and discussion of two specifically identified pamphlets. The Judicial District remains free to enforce the first paragraph of the Order—even against Plaintiffs—for all other First Amendment activities within the Restricted Areas.

Finally, the district court limited the geographic scope of the injunction. Although the Order prohibits First Amendment activity both inside and outside the Courthouse, the district court enjoined enforcement of Paragraph 1 as to Plaintiffs only outside the Courthouse, leaving the entirety of the Order intact within the Courthouse. And the district court did not enjoin enforcement of any part of the Order within those portions of the Restricted Areas dedicated to Courthouse landscaping and security features. Thus, the Order continues to prohibit all expressive activity in the planter boxes or other landscaping and in the gravel security areas. Accordingly, the features of the Restricted Area to which the preliminary injunction applies are limited to (1) the arced walkway running south from Colfax Avenue between the gravel security area (to the west of the walkway) and a raised planter (to the east of the walkway) and ending at the Patio area at the main entrance on the east side of the Courthouse; 2 and (2) the Patio area at the main entrance. 3

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2 As discussed, the Order’s prohibition on expressive activities in the planter and gravel security areas were not enjoined by the district court.

3 The evidence presented about the geographic layout and physical features of the Restricted Area consisted primarily of approximately fifteen photographs. Because the record contains little testimony about the photographs, we rely on our own review of them to describe the Restricted Areas. In particular, it is unclear whether and to what extent the Restricted Areas include the sidewalk running along Fox Street on the west side of the Courthouse. The exhibit appears to highlight some areas of the sidewalk, but counsel for the Judicial District conceded at oral argument that it would be “constitutionally questionable” to prevent speech on a public sidewalk, and then indicated “[t]hat is precisely why the order here does not extend that far.” Therefore, we do not treat the Fox Street sidewalk as part of the Restricted Areas for purposes of our analysis.
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Our task in this appeal is to determine whether the district court abused its discretion when, based on the record before it at the preliminary injunction hearing, it issued this narrow, targeted injunction. But the Judicial District asks us to consider events occurring after the preliminary injunction hearing to determine whether the district court abused its discretion in issuing the preliminary injunction. Specifically, the Judicial District points to evidence introduced during the Rule 62(c) hearing on the motion to stay the injunction pending appeal, which indicated that following the injunction, protestors had engaged in a series of inappropriate and disruptive behaviors. Some of these behaviors included harassing court personnel seeking to enter the Courthouse, erecting canopies and signs, and trampling Courthouse landscaping. According to the Judicial District, these post-injunction events demonstrate the “concrete concerns” motivating the creation of the Restricted Areas and therefore should have been considered by the district court.

Although we share the Judicial District’s concern about the disruptions created by some protestors following issuance of the injunction, these post-injunction events are not relevant to our resolution of this interlocutory appeal for two reasons. First, this evidence relates to events occurring after the preliminary injunction issued, and therefore none of it was presented to the district court at the hearing. We will not hold that the district court abused its discretion based on evidence not before it when it ruled. See Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir. 1998) (noting the general principle, in the context of de novo review of a summary judgment disposition, that we conduct our review “from the perspective of the district court at the time it made its ruling, ordinarily limiting our review to the materials adequately brought to the attention of the district court by the parties”); Theriot v. Par. of Jefferson, 185 F.3d 477, 491 n.26 (5th Cir. 1999) (“An appellate court may not consider . . . facts which were not before the district court at the time of the challenged ruling.”). Cf. Ambus v. Granite Bd. of Educ., 975 F.2d 1555, 1569 (10th Cir. 1992) (“[W]e will not reverse the grant of summary judgment . . . based on evidence not before the district court.”). Accordingly, our review is limited to the evidence before the district court at the time of the preliminary injunction hearing, and we will not consider post-injunction events.

Second, even if we were to consider the post-decision evidence, it would not alter our analysis. The evidence the Judicial District relies on to demonstrate the negative effects of the preliminary injunction, in fact, does not implicate the injunction at all. As discussed, the preliminary injunction enjoins enforcement of Paragraph 1 of the Order specifically against Plaintiffs’ pamphleteering activities in certain parts of the Restricted Areas. The district court expressly allowed the Judicial District to continue enforcing the entire Order as to all other parties and all other First Amendment activities in the Restricted Areas. Importantly, the preliminary injunction does not affect the Judicial District’s ability to enforce the Order against any protestors, including the Plaintiffs, who engage in disruptive behaviors. For example, the injunction does not prohibit the Judicial District from taking action against protestors who obstruct Courthouse entrances, damage the Courthouse landscaping, or erect structures. All of this behavior remained prohibited by the Order after issuance of the injunction. In short, nothing in the preliminary injunction before us on appeal interferes with the Judicial District’s or Denver’s ability to enforce the Order against anyone, including Plaintiffs, engaging in such behavior.

The evidence of post-injunction bad behavior of some protestors may be relevant on remand to a motion to modify the injunction4 or to the district court’s ultimate decision on whether to issue a permanent injunction. But for the purposes of this appeal, we limit our review to the evidence before the district court at the time it issued the preliminary injunction.

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4 As the district court noted, the Judicial District did not move to modify the preliminary injunction based on changed circumstances. See Fed. R. Civ. P. 60(b)(5) (allowing a party to obtain relief from a judgment or order when “applying [the judgment or order] prospectively is no longer equitable”); Horne v. Flores, 557 U.S. 433, 447 (2009) (noting that under Rule 60(b)(5) “[t]he party seeking relief bears the burden of establishing that changed circumstances warrant relief”).
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B. Abuse of Discretion

We now turn our attention to the question of whether the district court abused its discretion when it issued the preliminary injunction.

To obtain a preliminary injunction the moving party must demonstrate: (1) a likelihood of success on the merits; (2) a likelihood that the moving party will suffer irreparable harm if the injunction is not granted; (3) the balance of equities is in the moving party’s favor; and (4) the preliminary injunction is in the public interest.

Republican Party of N.M. v. King, 741 F.3d 1089, 1092 (10th Cir. 2013). In the First Amendment context, “the likelihood of success on the merits will often be the determinative factor” because of the seminal importance of the interests at stake. Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1145 (10th Cir. 2013) (internal quotation marks omitted); see also Heideman v. S. Salt Lake City, 348 F.3d 1182, 1190 (10th Cir. 2003) (“[T]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.”).

1. The district court did not abuse its discretion in finding the second, third, and fourth factors weighed in Plaintiffs’ favor.

Here, the district court found the second (irreparable harm), third (balance of equities), and fourth (public interest) factors weighed in Plaintiffs’ favor in light of the important First Amendment interests at stake. As an initial matter, the Judicial District has not challenged the district court’s determination as to these factors beyond a single footnote in its opening brief stating it had challenged them before the district court. A party’s offhand reference to an issue in a footnote, without citation to legal authority or reasoned argument, is insufficient to present the issue for our consideration. See San Juan Citizens All. v. Stiles, 654 F.3d 1038, 1055–56 (10th Cir. 2011). Accordingly, the Judicial District has waived any challenge to the district court’s findings related to the elements of irreparable harm, the balance of equities, and the public interest. But even if the Judicial District had properly challenged these factors on appeal, we would nevertheless affirm the district court’s conclusion that they weigh in Plaintiffs’ favor.

The Supreme Court has instructed that “[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976); see also Awad v. Ziriax, 670 F.3d 1111, 1131 (10th Cir. 2012) (“[W]hen an alleged constitutional right is involved, most courts hold that no further showing of irreparable injury is necessary.”). There is no dispute that Plaintiffs’ pamphleteering constitutes First Amendment activity. See McCullen v. Coakley, 134 S. Ct. 2518, 2536 (2014) (recognizing that one-on-one communication and leafletting are First Amendment-protected activities). And the Judicial District does not dispute that the Order would bar Plaintiffs from engaging in their pamphleteering in the Restricted Areas. Accordingly, the district court did not abuse its discretion in finding that the factor of irreparable harm weighs in Plaintiffs’ favor.

The third factor—balance of equities—also tips in Plaintiffs’ favor. Before the district court, Plaintiffs proffered testimony that the Order would substantially impair their ability to convey their intended message to their target audience because it would prevent Plaintiffs from approaching potential jurors and engaging in a meaningful discussion of jury nullification. The district court also heard testimony from Mr. Steadman that Plaintiffs’ distribution of jury nullification literature and one-on-one discussions with potential jurors did not present a security risk. And the Judicial District presented no evidence that Plaintiffs’ activities otherwise interfered with Courthouse functions. On this record, the district court did not abuse its discretion in finding the balance of equities weighed in favor of Plaintiffs. See Awad, 670 F.3d at 1132 (“Delayed implementation of a [governmental] measure that does not appear to address any immediate problem will generally not cause material harm, even if the measure were eventually found to be constitutional and enforceable.”).

As to whether the preliminary injunction is in the public interest, we agree with the district court that “it is always in the public interest to prevent the violation of a party’s constitutional rights.” Id. (internal quotation marks omitted); Pac. Frontier v. Pleasant Grove City, 414 F.3d 1221, 1237 (10th Cir. 2005) (“Vindicating First Amendment freedoms is clearly in the public interest.”). The district court did not abuse its discretion in finding the public interest was served by issuing the preliminary injunction to prevent the violation of Plaintiffs’ First Amendment rights.

Thus, we agree the second, third, and fourth factors weigh in Plaintiffs’ favor. The only remaining question, then, is whether the district court abused its discretion in finding Plaintiffs demonstrated a likelihood of success on the merits. 5 Specifically, we must determine whether the Order violated Plaintiffs’ First Amendment right to distribute jury nullification pamphlets and engage in one-on-one conversations with individuals entering and leaving the Courthouse.

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5 The Tenth Circuit has modified the preliminary injunction test when the moving party demonstrates that the second, third, and fourth factors “tip strongly” in its favor. See Oklahoma ex rel. Okla. Tax Comm’n v. Int’l Registration Plan, Inc., 455 F.3d 1107, 1113 (10th Cir. 2006). “In such situations, the moving party may meet the requirement for showing success on the merits by showing that questions going to the merits are so serious, substantial, difficult, and doubtful as to make the issue ripe for litigation and deserving of more deliberate investigation.” Id. (internal quotation marks omitted). But because we conclude the district court did not abuse its discretion in finding Plaintiffs demonstrated a likelihood of success on the merits, we need not decide whether this more lenient test applies.
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2. On this record, the district court did not abuse its discretion in finding Plaintiffs demonstrated a likelihood of success on the merits.

To demonstrate a violation of their First Amendment rights, Plaintiffs must first establish that their activities are protected by the First Amendment. See Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 797 (1985). If so, a court must identify whether the challenged restrictions impact a public or nonpublic forum, because that determination dictates the extent to which the government can restrict First Amendment activities within the forum. See id. Finally, courts must determine whether the proffered justifications for prohibiting speech in the forum satisfy the requisite standard of review. Id. We address each element in turn.

a. Plaintiffs’ activities are protected by the First Amendment

The Supreme Court recently reaffirmed that pamphleteering and one-on-one communications are First-Amendment-protected activities. See McCullen, 134 S. Ct. at 2536. The Court “observed that one-on-one communication is the most effective, fundamental, and perhaps economical avenue of political discourse” and that “no form of speech is entitled to greater constitutional protection” than leafletting. Id. (internal quotation marks and alteration omitted). The Court went on to state, “[w]hen the government makes it more difficult to engage in these modes of communication, it imposes an especially significant First Amendment burden.” Id. Thus, Plaintiffs’ activities are protected by the First Amendment.

b. The district court did not abuse its discretion by assuming for purposes of analysis that the Restricted Areas are public fora

To properly place the district court’s decision in context, we begin with a brief discussion of the significance of forum status to the protection afforded under the First Amendment to public speech on government property. We then review the argument presented by the Judicial District to the district court regarding the forum status of the Restricted Areas here. Because the Judicial District either made a strategic decision to forgo any argument that the Restricted Areas are nonpublic fora, or inadequately presented that argument to the district court, we conclude the argument is waived. As a result, the district court did not abuse its discretion by scrutinizing the Order under public forum analysis for purposes of the preliminary injunction motion.

Turning now to the constitutional restrictions on speech, our analysis is guided by Plaintiffs’ wish to engage in First Amendment-protected activity on government property. “Nothing in the Constitution requires the Government freely to grant access to all who wish to exercise their right to free speech on every type of Government property without regard to the nature of the property or to the disruption that might be caused by the speaker’s activities.” Cornelius, 473 U.S. at 799–800. But in some instances, the public may have acquired by tradition or prior permission the right to use government property for expressive purposes. See id. at 802. To determine when and to what extent the Government may properly limit expressive activity on its property, the Supreme Court has adopted a range of constitutional protections that varies depending on the nature of the government property, or forum. Id. at 800.

The Court has identified three types of speech fora: the traditional public forum, the designated public forum, and the nonpublic forum. Id. at 802. Traditional public fora are places that by long tradition have been open to public assembly and debate. See id.; Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983) (“At one end of the spectrum are streets and parks which ‘have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.’” (quoting Hague v. Comm. for Indus. Org., 307 U.S. 496, 515 (1939))). In these traditional public fora, the government’s right to “limit expressive activity [is] sharply circumscribed.” Id. A designated public forum is public property, not constituting a traditional public forum, which the government has intentionally opened to the public for expressive activity. Id. The government is not required to retain the open character of the property indefinitely, but “as long as it does so, it is bound by the same standards as apply in a traditional public forum.” Id. at 46. If the property is not a traditional public forum and it has not been designated as a public forum, it is a nonpublic forum. “Access to a nonpublic forum . . . can be restricted as long as the restrictions are ‘reasonable and are not an effort to suppress expression merely because public officials oppose the speaker’s view.’” 6 Cornelius, 473 U.S. at 800 (brackets omitted) (quoting Perry Educ., 460 U.S. at 46).

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6 Not relevant to this appeal, the Supreme Court has also recognized that the government can create a “limited public forum” by allowing “selective access to some speakers or some types of speech in a nonpublic forum,” while not opening “the property sufficiently to become a designated public forum.” Summum v. Callaghan, 130 F.3d 906, 916 (10th Cir. 1997) (citing Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 829–30 (1995)).
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Because the nature of the forum dictates the standard of scrutiny with which restrictions on speech are reviewed, courts typically begin the analysis of a challenge to restrictions on speech involving government property by identifying the nature of the forum involved. See, e.g., Doe v. City of Albuquerque, 667 F.3d 1111, 1128 (10th Cir. 2012). But the procedural posture of this appeal restricts the scope of our inquiry. That is, we need not determine whether the Restricted Areas are, in fact, public or nonpublic fora to resolve this interlocutory appeal. Rather, our task is to determine whether the district court abused its discretion when it found, based on the evidence and arguments presented, that Plaintiffs had demonstrated a likelihood of success on the merits. See Atchison, Topeka & Santa Fe Ry. Co. v. Lennen, 640 F.2d 255, 261 (10th Cir. 1981) (“It is only necessary that plaintiffs establish a reasonable probability of success, and not an ‘overwhelming’ likelihood of success, in order for a preliminary injunction to issue.”). Because the Judicial District waived any argument that the Restricted Areas are nonpublic fora, we conclude the district court did not abuse its discretion by evaluating the Plaintiffs’ likelihood of success under the scrutiny applicable to public fora.

To explain our rationale for this conclusion, we track the evolution of the Judicial District’s arguments in the district court regarding the forum status of the Restricted Areas. Plaintiffs argued in their motion for preliminary injunction that the entire Plaza, including the Restricted Areas, constitutes a traditional public forum. Denver also stipulated with Plaintiffs that the Plaza is a public forum.

In response to the motion for preliminary injunction, the Judicial District claimed Plaintiffs were unlikely to prevail on the merits of their First Amendment claim because “[i]rrespective of Denver’s view of the courthouse plaza, it is not a traditional public forum. And even if it were, the [Order] comes nowhere near banning all expressive activity in that area. To the contrary, it is a reasonable time, place, and manner restriction.” But the Judicial District did not then provide any support for its assertion that the Plaza is not a public forum. Rather, it first claimed that Plaintiffs lacked standing to challenge the Order and then continued its argument under the heading, “This Court need not decide whether the plaza is a traditional public forum for the purposes of this proceeding.” Under that heading, the Judicial District asserted that the Stipulation between the Plaintiffs and Denver did not bind the Judicial District or the district court and that therefore “[t]he status of the plaza is an open question.” But, again, rather than present argument on the correct forum status of the Plaza or ask the district court to reach a contrary conclusion, the Judicial District stated the district court need not identify the precise forum status of the Restricted Areas “because [the Order] would satisfy even the strictest test.” That is, the Judicial District claimed that “[e]ven if Plaintiffs were correct that the entire plaza is a traditional public forum,” and thus subject to a higher standard of review, the Order was constitutional as a reasonable time, place, and manner restriction. The Judicial District maintained this tactical approach through oral argument on the motion for a preliminary injunction.

After the close of evidence at the hearing on Plaintiffs’ motion for a preliminary injunction, the district court attempted to clarify the Judicial District’s position:

THE COURT: In your briefing the Attorney General took the position that it doesn’t matter whether the area in question is a public forum or a non-public forum area, because the Attorney General believes that you can establish the grounds necessary under the standards to apply in either case.

JUDICIAL DIST.: To be clear, our position is that this is not a public forum. However, that is a factually intensive question that I don’t think the Court has been presented with sufficient evidence to decide today.

THE COURT: Well, I have a stipulation from the owner of the property that it is a public forum area.

JUDICIAL DIST.: I understand that. I don’t think that binds either [the Judicial District] or this Court.

THE COURT: Well, that’s something I need to decide, right?

JUDICIAL DIST.: Not necessarily.

THE COURT: Okay. But here’s what I am getting at. Your position is, whether it’s public or non-public, you believe that the . . . Plaza Order . . . is sufficiently narrowly tailored to meet the concerns of ingress and egress to the courthouse and threat to the public safety. Is that your position?

JUDICIAL DIST.: Yes. Our position is that the order satisfies time, place, and manner requirements. . . .

The discussion then proceeded under the assumption that the Order impacted a public forum and therefore had to be narrowly tailored. Recall that the government has broad discretion to restrict expressive activity in a nonpublic forum, irrespective of whether the restrictions are narrowly tailored. Perry Educ., 460 U.S. at 46. But, as will be discussed in more detail below, even content-neutral restrictions on speech in a public forum—whether a traditional public forum or a designated public forum—must be narrowly tailored to advance a significant government interest. See id. at 45–46.

Consistent with its acquiescence to the district court’s application of a public forum analysis at the preliminary injunction stage, the Judicial District limited its oral argument on the motion for preliminary injunction to the proper definition of “narrowly- tailored.” Tellingly, the Judicial District provided no argument relevant to whether the Restricted Area was, in fact, a public forum, or that the restrictions did not have to be narrowly tailored at all because they impacted only nonpublic fora. Instead, the Judicial District conceded that the evidence was insufficient to allow the district court to determine the forum status of the Restricted Areas. But it claimed the district court could proceed to the merits under a public forum analysis nevertheless, because the result would be the same whether the Restricted Areas were public or nonpublic fora. That is, the Judicial District argued the district court could assume for purposes of analysis that the Restricted Areas are public fora. And the district court did as suggested in its Order Granting Motion for Preliminary Injunction.

In the Preliminary Injunction Order’s discussion of the likelihood that Plaintiffs will succeed on the merits, the district court discussed forum in a section titled, “Is the Courthouse Plaza a Public Forum?” In this section, the district court considered the significance of the nature of the forum, the disagreement between Denver and the Judicial District on that issue, and the Stipulation between Denver and Plaintiffs that the Restricted Areas are public fora. Relying in part on the Stipulation, the district court concluded Plaintiffs are “likely to prevail in their claim that the Courthouse Plaza is at least a designated public forum, if not a traditional public forum.” But the district court also notes “the Second Judicial District has not specifically argued for a finding that the Courthouse Plaza is a nonpublic forum. Rather, it says that ‘resolving [the type of forum at issue] is not necessary for the purposes of this proceeding because the [Plaza Order] would satisfy even the strictest test.’”

Our review of the record is consistent with the district court’s assessment of the Judicial District’s argument. During the briefing and argument to the district court in opposition to Plaintiffs’ motion for preliminary injunction, the Judicial District never provided legal argument supporting its conclusory statement that the Restricted Areas are nonpublic fora. As noted, it instead indicated the forum status of the Plaza was an open question the district court need not decide, and further conceded it was a question the district court could not decide based on the evidence presented. In sum, the Judicial District made the strategic decision to accept Plaintiffs’ characterization of the Restricted Areas as a public forum for purposes of analysis and to present only an argument that the Order is constitutional under the scrutiny applicable to restrictions of speech in public fora. And the Judicial District maintained that position throughout the district court proceedings.

The Judicial District filed a motion in the district court to stay the injunction pending appeal, in which it stated “courthouse plazas are not traditional public fora,” and cited, without further analysis, Hodge v. Talkin, 799 F.3d 1145 (D.C. Cir. 2015), a new decision at the time holding the plaza of the Supreme Court building is not a public forum. But again, the Judicial District did not seek a ruling that the Restricted Areas are nonpublic fora or provide reasoned analysis to support such a claim. Consistent with its earlier strategy, the Judicial District argued that “even if the [Courthouse Plaza] were a traditional public forum,” the district court applied the wrong level of scrutiny. Significantly, the Judicial District never claimed it could bar or reasonably restrict speech in the Restricted Areas because they were nonpublic fora; it argued the district court had erred because “[s]trict scrutiny applies only to content-based restrictions on speech in a public forum.”

For the first time on appeal, the Judicial District provides substantive argument for the claim that the Restricted Areas are nonpublic fora and, therefore, the district court should have considered only whether the content-neutral restrictions contained in the Order were reasonable. When a party pursues a new legal theory for the first time on appeal, we usually refuse to consider it. See Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1127–28 (10th Cir. 2011); Lone Star Steel Co. v. United Mine Workers of Am., 851 F.2d 1239, 1243 (10th Cir. 1988) (“Ordinarily, a party may not lose in the district court on one theory of the case, and then prevail on appeal on a different theory.”).

As noted, the Judicial District was aware of the “open question” with respect to the forum status of the Restricted Areas but made the strategic decision to forgo presenting meaningful argument on this point. In its response brief to Plaintiffs’ motion for preliminary injunction filed with the district court, the Judicial District cited three cases in support of its statement that the forum question remains open. But it provided no argument incorporating those decisions into a cogent legal analysis of the Restricted Areas as nonpublic fora. See United States v. Wooten, 377 F.3d 1134, 1145 (10th Cir. 2004) (“The court will not consider such issues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation.” (internal quotation marks omitted)). And although forum status is a fact-intensive inquiry, the Judicial District failed to explain how the particular facts here color that analysis. Cf. Fed. R. App. P. 28(a)(8)(A) (providing that appellant’s opening brief must contain an argument section that includes “appellant’s contentions and the reasons for them, with citations to the authorities and parts of the record on which the appellant relies”).

Thus, the Judicial District has waived this issue, at least for purposes of our review of the preliminary injunction order. Richison, 634 F.3d at 1127 (explaining that if a party intentionally chooses not to pursue an argument before the district court, “we usually deem it waived and refuse to consider it”). 7 And the forum status issue is not properly before us even if we generously conclude the Judicial District presented alternative arguments to the district court that (1) the Restricted Areas are not public fora; or (2) even if the Restricted Areas are public fora, the Order can survive the applicable level of scrutiny. Although the Judicial District presented cogent legal argument on the second issue, it failed to present reasoned argument on the first to the district court. See Ark Initiative v. U.S. Forest Serv., 660 F.3d 1256, 1263 (10th Cir. 2011) (holding that the “scant discussion” of an issue in the district court “appear[ed] as an afterthought, and [did] not meet the standard for preserving an issue for review”).

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7 Even if this argument had been merely forfeited, it would nevertheless be an inappropriate basis for reversal because the Judicial District has not argued plain error. See Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1131 (10th Cir. 2011) (“And the failure to do so —the failure to argue for plain error and its application on appeal— surely marks the end of the road for an argument for reversal not first presented to the district court.”). Nor are we inclined to exercise our discretion to consider the forum status issue despite the failure to raise it to the district court because we agree with the Judicial District that the preliminary injunction record is inadequate for that purpose. Cf. Cox v. Glanz, 800 F.3d 1231, 1244–45 (10th Cir. 2015) (exercising discretion to consider forfeited argument on “clearly established” prong of qualified immunity).
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Our conclusion that the Judicial District failed to adequately present this issue to the district court is further supported by the district court’s view that “the Second Judicial District ha[d] not specifically argued for a finding that the Courthouse Plaza is a nonpublic forum.” Id. (“Not surprisingly, the district court never addressed” the issue.). Accordingly, the argument that the Restricted Areas are nonpublic fora was waived either by the Judicial District’s strategic decision not to present it, or by the Judicial District’s failure to adequately brief the issue. As such, the district court’s application of a public forum analysis is not a legitimate ground on which to reverse the preliminary injunction order.

We now address the only other challenge the Judicial District makes to the preliminary injunction: that the district court abused its discretion by applying the wrong test, even if the Restricted Areas are public fora.

c. The district court did not apply the wrong standard to the content-neutral restrictions imposed by the Order

Having determined the district court did not abuse its discretion by treating the Restricted Areas as public fora for purposes of analysis, we next consider whether the district court abused its discretion when it found Plaintiffs had demonstrated a likelihood of success on the question of whether the Order violated their constitutional rights under the relevant First Amendment standards. 8 In a public forum, the government cannot ban all expressive activity. Perry Educ., 460 U.S. at 45. But even in a public forum, the government can restrict speech through “content-neutral time, place, and manner restrictions that: (a) serve a significant government interest; (b) are narrowly tailored to advance that interest; and (c) leave open ample alternative channels of communication.” Doe, 667 F.3d at 1130–31. Content-based restrictions, however, “must satisfy strict scrutiny, that is, the restriction must be narrowly tailored to serve a compelling government interest.” Summum, 555 U.S. at 469.

The Judicial District argues the district court abused its discretion by applying an incorrect legal standard. Specifically, the Judicial District contends the district court applied the stringent strict scrutiny analysis reserved for content-based restrictions. And because the Order imposes only content-neutral restrictions, the Judicial District claims this was an abuse of discretion. Although we agree the restrictions are content-neutral, we are not convinced the district court applied the more stringent standard applicable to content-based restrictions.

The district court explained that under the relevant standard, “[t]he state may . . . enforce regulations of the time, place, and manner of expression which [1] are content- neutral, [2] are narrowly tailored to serve a significant government interest, and [3] leave open ample alternative channels of communication.” On its face, then, the district court appears to have invoked the correct legal standard. Cf. Doe, 667 F.3d at 1130–31 (same). Nevertheless, the Judicial District argues that in considering whether the restrictions are “narrowly tailored,” the district court inappropriately applied the more demanding standard applicable to content-based regulations.

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8 “Government restrictions on speech in a designated public forum are subject to the same strict scrutiny as restrictions in a traditional public forum.” Pleasant Grove City v. Summum, 555 U.S. 460, 470 (2009). Thus, our analysis does not turn on whether the Restricted Areas are considered traditional or designated public fora.
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The term “narrowly tailored” appears in the tests for both content-based and content-neutral regulations on speech. See Doe, 667 F.3d at 1130–31 (indicating a content-neutral regulation must be “narrowly tailored” to advance a significant government interest); Pleasant Grove, 555 U.S. at 469 (stating that content-based restrictions “must be narrowly tailored to serve a compelling government interest”) (emphasis added)). And, as the Judicial District correctly notes, there are subtle differences in the way courts apply the concept of narrow tailoring in the two contexts. For the purposes of a content-neutral regulation, “the requirement of narrow tailoring is satisfied so long as the regulation promotes a substantial government interest that would be achieved less effectively absent the regulation, and does not burden substantially more speech than is necessary to further the government’s legitimate interests.” Wells v. City & Cty. of Denver, 257 F.3d 1132, 1148 (10th Cir. 2001) (ellipsis and internal quotation marks omitted). In contrast, a content-based restriction is narrowly tailored only if it is the least restrictive means of achieving the government’s compelling objective. See Ashcroft v. ACLU, 542 U.S. 656, 666 (2004); United States v. Playboy Entm’t Grp., Inc., 529 U.S. 803, 813 (2000).

According to the Judicial District, the district court considered alternatives to the Order that might have been employed to achieve the Judicial District’s objectives, and such consideration proves the district court applied the “least restrictive means” standard. In the Judicial District’s view, any inquiry into alternative means of achieving the government objective is inappropriate where, like here, the restrictions are content-neutral, rather than content-based, and thus not subject to the least restrictive alternative form of narrow tailoring. We disagree.

The Supreme Court has not discouraged courts from considering alternative approaches to achieving the government’s goals when determining whether a content- neutral regulation is narrowly tailored to advance a significant government interest. Although the Court has held that a content-neutral regulation “need not be the least restrictive or least intrusive means of serving the government’s interests,” it has also explained that “the government still may not regulate expression in such a manner that a substantial portion of the burden on speech does not serve to advance its goals.” McCullen, 134 S. Ct. at 2535 (internal quotation marks omitted). And when considering content-neutral regulations, the Court itself has examined possible alternative approaches to achieving the government’s objective to determine whether the government’s chosen approach burdens substantially more speech than necessary. Id. at 2537–39. That is, the government may not “forgo[] options that could serve its interests just as well,” if those options would avoid “substantially burdening the kind of speech in which [Plaintiffs’] wish to engage.” Id. at 2537; id. at 2539 (“The point is not that [the government] must enact all or even any of the proposed [alternative approaches]. The point is instead that the [government] has available to it a variety of approaches that appear capable of serving its interests, without excluding individuals from areas historically open for speech and debate.”). Thus, “[t]o meet the requirement of narrow tailoring [in the context of content-neutral regulations], the government must demonstrate that alternative measures that burden substantially less speech would fail to achieve the government’s interests, not simply that the chosen route is easier.” Id. at 2540.

As a result, we cannot conclude the district court applied the wrong legal standard merely because it considered whether the Judicial District had options other than the complete ban on speech contained in Paragraph 1 of the Order that would equally serve its interests. We now turn our attention to whether, under the standard applicable to content-neutral regulations in a public forum, the district court abused its discretion when it found Plaintiffs had demonstrated a likelihood of success on the question of whether the Order survives constitutional scrutiny.

d. The district court did not abuse its discretion by concluding that Plaintiffs were likely to succeed on the merits

As discussed, for purposes of the preliminary injunction analysis, the Judicial District acquiesced in the district court’s acceptance of Plaintiffs’ characterization, and Denver’s Stipulation, that the Restricted Areas are public fora. Under that assumption, we can easily conclude the district court did not abuse its discretion in finding Plaintiffs were likely to succeed on their claim that a complete ban of their expressive activities violates the First Amendment. Our resolution of this issue is informed by the Supreme Court’s recent decision in McCullen, which is highly analogous.

In McCullen, the Supreme Court considered the constitutionality of a state law creating thirty-five-foot buffer zones around the entrances of facilities where abortions are performed. Id. at 2525. The McCullen plaintiffs wished to approach and talk to women outside such facilities —to engage in “sidewalk counseling”— in an attempt to dissuade the women from obtaining abortions. Id. at 2527. The buffer zones forced the McCullen plaintiffs away from their preferred positions outside the clinics’ entrances, thereby hampering their sidewalk counseling efforts. Id. at 2527–28. The McCullen plaintiffs brought suit, arguing the buffer zones restricted their First Amendment rights and seeking to enjoin enforcement of the statute creating the buffer zones. Id. at 2528. After the First Circuit upheld the statute as a reasonable content-neutral time, place, and manner restriction, the Supreme Court granted certiorari. Id.

The Court began its analysis by recognizing that the buffer-zone statute operated to restrict speech in traditional public fora: streets and sidewalks. Id. at 2529. It then held the buffer-zone statute was a content-neutral restriction because violations of the act depended not on what the plaintiffs said, but on where they said it. Id. at 2531 (“Indeed, petitioners can violate the Act merely by standing in a buffer zone, without displaying a sign or uttering a word.”). The Court then proceeded to apply the test for content-neutral restrictions in a public forum, assessing whether the buffer-zone statute was “narrowly tailored to serve a significant governmental interest.” Id. at 2534. Because the plaintiffs had not challenged the significance of the government’s asserted interests, the Court’s analysis largely focused on the question of whether the statute was narrowly tailored to serve that interest.

The Court noted the buffer zones placed serious burdens on the plaintiffs’ speech activities. Id. at 2535. Specifically, by preventing the plaintiffs from engaging in quiet, one-on-one conversations about abortion and distributing literature, the buffer zones “operate[d] to deprive petitioners of their two primary methods of communicating with patients.” Id. at 2536. Although the First Amendment does not guarantee a right to any particular form of speech, the Supreme Court explained that some forms of speech -one-on-one conversation and leafletting on public sidewalks— “have historically been more closely associated with the transmission of ideas than others.” Id. The Court held that “[w]hen the government makes it more difficult to engage in [one-on-one communication and leafletting], it imposes an especially significant First Amendment burden.” Id.

The Court also rejected the idea that the buffer zones were constitutional because they left ample alternative channels for communication. Id. at 2536–37. In McCullen, the size of the buffer zone made it difficult to distinguish persons headed to the clinic from passersby “in time to initiate a conversation before they enter[ed] the buffer zone.” Id. at 2535. As a result, the plaintiffs were often forced to raise their voices from outside the buffer zone once they identified the clinic patients, thereby forcing a mode of communication contrary to their compassionate message and preventing them from distributing pamphlets. Id. at 2535-36. Where the plaintiffs wished to engage in quiet conversations with women seeking abortions and not in noisy protest speech, the Court held it was “no answer to say that petitioners can still be ‘seen and heard’ by women within the buffer zones.” Id. at 2537. Instead, the Supreme Court concluded the thirty-five foot buffer zones had “effectively stifled petitioners’ message” by prohibiting the plaintiffs’ chosen means of communication. Id.

Finally, the Court held the buffer zones burdened substantially more speech than necessary to achieve the state’s asserted interests in public safety, preventing harassment of women and clinic staff seeking entrance to clinics, and preventing deliberate obstruction of clinic entrances. Id. Although the Court acknowledged the importance of these interests, it determined the state’s chosen method of achieving them —categorically excluding most individuals from the buffer zones— was not narrowly tailored. Id. at 2537–41. That is, the Court held the government had not demonstrated “that alternative measures that burden substantially less speech would fail to achieve the government’s interests.” Id. at 2540. In so doing, the Court expressly rejected the argument that the government could choose a particular means of achieving its interests merely because that method was easier to administer. Id.

Here, the Order imposes substantially similar restrictions on Plaintiffs’ First Amendment activities as the buffer-zone statute did in McCullen. Specifically, the Order imposes a categorical ban on First Amendment activity within the Restricted Areas. This ban effectively destroys Plaintiffs’ ability to engage in one-on-one communication and leafletting within the Restricted Areas. And the record is silent on whether Plaintiff could adequately identify and thereby engage in their preferred method of communication before the public entered the Restricted Areas. Where the district court’s preliminary injunction analysis was based on a public forum analysis and the record does not contain facts to distinguish McCullen, we cannot conclude that the district court abused its discretion in finding that the Plaintiffs are likely to succeed on the merits of their First Amendment claim.

Moreover, the Judicial District’s asserted interests in banning First Amendment activity in the Restricted Areas are largely identical to the government interests asserted in McCullen: unhindered ingress and egress and public safety. See id. We agree these interests are legitimate. But on this record at least, the district court did not abuse its discretion in concluding the means chosen to achieve those interests —a total ban on expressive activity— is not narrowly tailored, as even content-neutral regulations in a public forum must be. 9

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9 This is not to say that the Judicial District cannot impose content-neutral time, place, and manner restrictions that are narrowly-tailored to advance the significant interests it identifies. Indeed, several of the provisions contained in the Order were not enjoined by the district court. As one example, paragraph 4 of the Order prohibits the use of sound amplification equipment. This type of content-neutral restriction has long been upheld. See Ward v. Rock Against Racism, 491 U.S. 781, 796–97 (1989).
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In summary, the district court did not abuse its discretion by analyzing the issues at the preliminary injunction stage as if the Restricted Areas were public fora, or by considering alternative means of achieving the governmental interests in determining whether the Order is narrowly tailored to serve a significant government interest. Similarly, the district court did not abuse its discretion by finding Plaintiffs were likely to prevail on their claim that the complete prohibition of Plaintiffs’ plans to distribute pamphlets to people in a public forum is unconstitutional. See United States v. Apel, __ U.S. __, 134 S. Ct. 1144, 1154–55 (2014) (Ginsburg, J., concurring) (“When the Government permits the public onto part of its property, in either a traditional or designated public forum, its ‘ability to permissibly restrict expressive conduct is very limited.’” (quoting United States v. Grace, 461 U.S. 171, 177 (1983)).

Nevertheless, because the question of the forum status of the Restricted Areas will remain central to the district court’s permanent injunction analysis on remand, we now address principles relevant to the resolution of this issue. See Cook v. Rockwell Int’l Corp., 618 F.3d 1127, 1142 n.15 (10th Cir. 2010) (“[I]t is proper to . . . decide questions of law raised in this appeal that are certain to arise again . . . in order to guide the district court on remand.”). In doing so, we express no opinion as to the merits of that question.

C. Issues on Remand

To determine whether a permanent injunction should be granted, the district court must reach a final decision on the First Amendment issues in this case. Because the relevant First Amendment test varies according to the nature of the forum involved and because the Judicial District will presumably contest Plaintiffs’ characterization of the Restricted Areas as public fora, the district court is required to first determine the forum status of the Restricted Areas. In resolving this question, the parties must present evidence, and the district court must enter factual findings supporting its conclusion, that each of the Restricted Areas constitutes a traditional public forum, a designated public forum, or a nonpublic forum. See, e.g., Huminski v. Corsones, 396 F.3d 53, 90–92 (2d Cir. 2004) (separately considering the forum status of state courthouses, court lands/grounds, and parking lots); Sammartano v. First Judicial Dist. Ct., 303 F.3d 959, 966–68 (9th Cir. 2002) (concluding plaintiffs were likely to succeed on First Amendment challenge to rule restricting expressive clothing in municipal complex, including courtrooms, because the rule “does not differentiate between courtrooms and other public areas”), abrogated on other grounds by Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (2008); United States v. Gilbert, 920 F.2d 878, 884 (11th Cir. 1991) (Gilbert I) (holding portions of courthouse grounds were designated public fora, while other parts of the grounds were nonpublic fora). We summarize the relevant precedent on these issues now in an attempt to aid the district court and the parties in this task on remand. In addition, we provide some limited guidance to the district court and the parties on the tension between the Judicial District and Denver over the appropriate use of the Restricted Areas.

1. Traditional Public Fora

The Supreme Court has long recognized “that public places historically associated with the free exercise of expressive activities, such as streets, sidewalks, and parks, are considered, without more, to be public forums.” United States v. Grace, 461 U.S. 171, 177 (1983) (internal quotation marks omitted); see also Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983) (identifying as “quintessential” public fora those spaces that “time out of mind[] have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions”). Here, the Restricted Areas include the arced walkway that runs from the corner of Elati Street and Colfax Avenue in a curved path across the front of the Courthouse to the Patio in front of the main entrance to the Courthouse. The inclusion of this area raises at least a question concerning its status as traditional a public forum.

The Supreme Court has also cautioned, however, that not all streets and sidewalks are traditional public fora. See United States v. Kokinda, 497 U.S. 720, 727 (1990) (discussing a postal sidewalk “constructed solely to provide for the passage of individuals engaged in postal business” from the parking area to the post office door); Greer v. Spock, 424 U.S. 828, 835–37 (1976) (speech restrictions on a military reservation that contained streets and sidewalks). Instead, the particular characteristics of a sidewalk are highly relevant to the inquiry. See Grace, 461 U.S. at 179–80. “The mere physical characteristics of the property cannot dictate” the outcome of the forum analysis. Kokinda, 497 U.S. at 727. Rather, “the location and purpose of a publicly owned sidewalk is critical to determining whether such a sidewalk constitutes a public forum.” Id. at 728–29.

The Supreme Court’s discussion in Grace is likely to be of particular relevance on remand. In Grace, the Court considered whether a federal statute prohibiting expressive activities on the Supreme Court’s grounds could be constitutionally applied to the adjacent public sidewalks. 461 U.S. at 172–73. The Court found the public sidewalks along the perimeter of the grounds were physically indistinguishable from other public sidewalks in Washington, D.C. Id. at 179. “There is no separation, no fence, and no indication whatever to persons stepping from the street to the curb and sidewalks that serve as the perimeter of the Court grounds that they have entered some special type of enclave.” Id. at 180. See also Int’l Soc’y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 680 (1992) (“[W]e have recognized that the location of property also has a bearing [on whether it is a traditional public forum] because separation from acknowledged public areas may serve to indicate that the separated property is a special enclave, subject to greater restriction.”). In the absence of some physical distinction between typical public sidewalks and the sidewalks making up the perimeter of the Court grounds, the Court in Grace held the perimeter sidewalks were traditional public fora, subject only to those restrictions normally allowed in such spaces. 461 U.S. at 180. Thus, on remand here, the district court must determine whether the evidence supports a finding that the arced walkway is physically distinguishable from other public sidewalks.

But the physical similarity to public sidewalks is not alone determinative of these sidewalks’ forum status. In Kokinda, the Supreme Court held that a sidewalk owned by and in front of a United States Post Office was not a traditional public forum, despite the fact that it was physically identical to a public sidewalk across the parking lot from the post office entrance. 497 U.S. at 727. The Court reasoned the post office sidewalk did not share the characteristics of a sidewalk open to the public at large. Although the public sidewalk formed a public passageway that served as a general thoroughfare, in contrast, “the postal sidewalk was constructed solely to provide for the passage of individuals engaged in postal business.” Id. As a result, the Court held the postal sidewalk was not a traditional public forum. Id. at 729–30. Accordingly, the evidence and findings of fact on remand should be focused on the physical characteristics and the intended and actual use of any sidewalks included in the Restricted Areas.

Importantly, the mere fact a sidewalk abuts a courthouse or its grounds is not determinative of the forum status of the sidewalk. 10 The Grace Court expressly rejected the idea that a traditional public forum could be transformed into a nonpublic forum merely because of its physical proximity to government property. 461 U.S. at 180. The Court stated

[t]raditional public forum property occupies a special position in terms of First Amendment protection and will not lose its historically recognized character for the reason that it abuts government property that has been dedicated to a use other than as a forum for public expression. Nor may the government transform the character of the property by the expedient of including it within the statutory definition of what might be considered a non-public forum parcel of property.

Id.; see also Rodney A. Smolla, 1 Smolla & Nimmer on Freedom of Speech § 8:32 (“With the development of modern public forum doctrine, courts increasingly have come to recognize that they are not immune from the rules set down for other public property.”). In Grace, the Supreme Court concluded, “[w]e are convinced . . . that the [statute], which totally bans the specified communicative activity on the public sidewalks around the Court grounds, cannot be justified as a reasonable place restriction primarily because it has an insufficient nexus with any of the public interests [asserted].” 461 U.S. at 181. Similarly, the fact that the arced walkway abuts the Courthouse here is not determinative alone of its forum status.

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10 The cases relied on by the Judicial District do not support the blanket proposition that all courthouse grounds are automatically nonpublic fora merely because they physically abut a courthouse. Rather, these cases first conclude the grounds are not a traditional public forum and then carefully consider the physical characteristics of the government property, as well as the prior use of that property for expressive activities, to determine its forum status. See Huminski v. Corsones, 396 F.3d 53, 90–92 (2d Cir. 2004) (holding courthouses were nonpublic fora where buildings housing the courts had not been traditionally open to the public for expressive activities and such activities inside the courthouse would likely be incompatible with the purposes the courthouse serves); Sammartano v. First Judicial Dist. Ct., 303 F.3d 959, 966 (9th Cir. 2002) (holding civil complex, including courts and public offices had not “by long tradition or by government fiat” been open to public expression and agreeing with parties that it was a nonpublic forum), abrogated on other grounds by Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (2008). See also United States v. Gilbert (Gilbert I), 920 F.2d 878, 884–85 (11th Cir. 1991) (considering prior expressive activities on different areas of court grounds and holding some portions had been designated as public fora, while other parts of the grounds were nonpublic fora).
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The district court will also be required to decide the forum status of the Patio before it can apply the proper standard to restrictions on expressive activity in that Restricted Area. The D.C. Circuit recently applied the Court’s forum analysis in Grace to the question of whether the plaza in front of the Supreme Court was a traditional public forum. See Hodge v. Talkin, 799 F.3d 1145, 1158 (D.C. Cir. 2015), petition for cert. filed, 84 U.S.L.W. 3388 (U.S. Jan. 4, 2016) (No. 15-863). The court’s analysis focused on the plaza’s physical characteristics, emphasizing the architectural integration of the plaza with the Supreme Court building itself, as well as the physical separation between the plaza and the perimeter sidewalks. Id. at 1158–59. In particular, the D.C. Circuit relied on evidence that the Supreme Court plaza is elevated from the public sidewalk by a set of marble steps that contrast with the public sidewalk, but match the steps leading to the entrance of the Supreme Court building. It also relied on evidence that the plaza is surrounded by a low wall that matches the wall surrounding the Supreme Court building. Id. at 1158. According to the court, a visitor would be on notice that the pathway to the Supreme Court begins on the plaza. Id. Because the physical characteristics of the plaza indicated an intentional separation from the surrounding sidewalks and because the plaza had not traditionally been a space open for expressive activities, the D.C. Circuit held the Supreme Court plaza was a nonpublic forum. Id. at 1159–60.

Here, the parties should present evidence and the district court should make findings about the physical characteristics of the arced walkway and Patio, with attention to the ways in which each is distinguished from public sidewalks and the public areas of the Plaza. Specifically, the district court should consider whether it would be apparent to a visitor that by entering the Patio he is entering an enclave connected with the Courthouse and whether the use of the arced walkway is limited to courthouse ingress and egress.

?2. Designated Public Fora

If the district court finds that one or more of the Restricted Areas is not a traditional public forum, it must next consider whether the Restricted Area has been nevertheless designated as public fora. The Supreme Court has explained that “a government entity may create ‘a designated public forum’ if government property that has not traditionally been regarded as a public forum is intentionally opened up for that purpose.” Pleasant Grove City v. Summum, 555 U.S. 460, 469 (2009) (holding that placement of certain privately donated permanent monuments in public park while rejecting others constituted government, not public, speech). To create a designated public forum, “the government must make an affirmative choice to open up its property for use as a public forum.” United States v. Am. Library Ass’n, Inc., 539 U.S. 194, 206 (2003) (holding that library’s provision of internet access did not open a designated public forum, but was offered as a technological extension of its book collection). The Court has further cautioned that “[t]he government does not create a public forum by inaction or by permitting limited discourse, but only by intentionally opening a nontraditional forum for public discourse.” Cornelius v. NAACP Legal Def. & Educ. Fund, 473 U.S. 788, 802 (1985). See also Walker v. Tex. Div., Sons of Confederate Veterans, Inc., ___ U.S. ___, 135 S. Ct. 2239, 2249–50 (2015) (holding that Texas did not intentionally open its license plates to public discourse). Thus, the government’s intent is the focus of this inquiry. See Cornelius, 473 U.S. at 802; see also Gen. Media Commc’ns, Inc. v. Cohen, 131 F.3d 273, 279 (2d Cir. 1997) (“Governmental intent is said to be the ‘touchstone’ of forum analysis.”), as corrected and reported at 1997 U.S. App. LEXIS 40571, *15 (March 25, 1998).

The Supreme Court has further instructed that it “will not find that a public forum has been created in the face of clear evidence of a contrary intent, nor will [it] infer that the government intended to create a public forum when the nature of the property is inconsistent with expressive activity.” Cornelius, 473 U.S. at 803. If the “principal function of the property would be disrupted by expressive activity,” the Supreme Court is “particularly reluctant” to conclude the government designated it as a public forum. Id. at 804. Consequently, prohibitions on speech within a courthouse have been routinely upheld. 11 See, e.g., Hodge, 799 F.3d at 1158 (upholding statute banning expressive activities within Supreme Court building); Mezibov v. Allen, 411 F.3d 712, 718 (6th Cir. 2005) (“The courtroom is a nonpublic forum.”); Huminski, 396 F.3d at 91 (collecting cases and holding that the interior of a courthouse is not a public forum); Sefick v. Gardner, 164 F.3d 370, 372 (7th Cir. 1998) (“The lobby of the courthouse is not a traditional public forum or a designated public forum, not a place open to the public for the presentation of views. No one can hold a political rally in the lobby of a federal courthouse.”); Berner v. Delahanty, 129 F.3d 20, 26 (1st Cir. 1997) (holding that courtroom is a nonpublic forum).

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11 The preliminary injunction here does not enjoin the Order’s restrictions on speech within the Courthouse.
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Under facts similar to those here, the Seventh Circuit held the plaintiffs had no First Amendment right to distribute jury nullification pamphlets in the lobby of the county courthouse. Braun v. Baldwin, 346 F.3d 761, 764 (7th Cir. 2003) (“[Plaintiffs] have no greater right than a criminal defendant’s lawyer to tell jurors in the courthouse to disobey the judge’s instructions.” (emphasis added)). See also United States v. Ogle, 613 F.2d 233 (10th Cir. 1979) (upholding conviction for jury tampering where the defendant, who did not raise a First Amendment defense, attempted to have jury nullification literature delivered to a juror in a pending case).

Although there is little doubt the interior of a courthouse is a nonpublic forum, the forum status of a courthouse’s exterior is dependent upon the unique facts involved. Compare Grace, 461 U.S. at 182 (acknowledging “necessity to protect persons and property or to maintain proper order and decorum within the Supreme Court grounds,” but striking as unconstitutional a ban on expressive activities on abutting sidewalks), with Cox v. Louisiana, 379 U.S. 559, 562–64, 572–74 (1965) (upholding statute prohibiting demonstration outside a courthouse intended to affect the outcome of pending criminal charges, but reversing defendant’s conviction pursuant to the statute under the circumstances). In determining whether the government “intended to designate a place not traditionally open to assembly and debate as a public forum,” the Supreme Court “has looked to the policy and practice of the government and to the nature of the property and its compatibility with expressive activity.” Walker, 135 S. Ct. at 2250 (internal quotation marks omitted).

Applying these principles, the Eleventh Circuit reached contrary conclusions regarding different portions of the grounds of a federal building housing a federal district court and federal agencies. Gilbert I, 902 F.2d at 884. In Gilbert I, the plaintiff challenged an injunction prohibiting him from using the federal building as his home and from engaging in certain expressive activities in and around the building. The ground level of the federal building included an interior lobby and, outside the lobby doors, a covered portico leading to an uncovered plaza. Id. at 880–81. Because demonstrations had occurred frequently on the uncovered plaza, the Eleventh Circuit held the uncovered plaza had been designated as a public forum. In contrast, it determined the covered portico area was not a public forum. In reaching that conclusion, the court relied in part on the district court’s finding that the Government Services Agency (GSA) had an unwritten policy of excluding demonstrators from the covered portico. Although there was evidence demonstrators had occasionally used the portico during protest activities, the Eleventh Circuit relied on the district court’s finding that these were “isolated instances of undiscovered violations” of the GSA policy and not the intentional “opening of a nontraditional forum for public discourse.” 12 Id. at 884–85.

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12 After the Eleventh Circuit issued this decision, an unrelated security issue caused the GSA to place a row of planters across the uncovered plaza and to issue a statement limiting the public forum to the area between the planters and the public street. Mr. Gilbert again sued and the circuit court upheld the district court’s ruling that the GSA had effectively withdrawn the area between the planters and the building previously designated as a public forum. See United States v. Gilbert (Gilbert III), 130 F.3d 1458, 1461 (11th Cir. 1997) (“The government is not required to retain indefinitely the open character of a facility.”). Between Gilbert I and Gilbert III, the Eleventh Circuit upheld Mr. Gilbert’s conviction for obstructing the entrance to the federal building. United States v. Gilbert (Gilbert II), 47 F.3d 1116, 1117 (11th Cir. 1995).
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As the decision in Gilbert I demonstrates, the issue of whether an area associated with a courthouse has been designated as a public or nonpublic forum is highly dependent on the evidence of the government’s intent to open the area to public speech. That intent can be established by the government’s policy statements, 13 affirmative actions by the government to designate the area as a public forum, 14 stipulation, 15 the compatibility of expressive activity with the principal function of the property, 16 and whether and the frequency with which public speech has been permitted in the forum. 17 To avoid post hoc justification for a desire to suppress a particular message, courts have considered the government’s statement of policy in light of the government’s actual practice. Air Line Pilots Ass’n, Int’l v. Dep’t of Aviation of City of Chi., 45 F.3d 1144, 1153–54 (7th Cir. 1995) (“[A] court must examine the actual policy —as gleaned from the consistent practice with regard to various speakers— to determine whether a state intended to create a designated public forum.”); Hays Cty. Guardian v. Supple, 969 F.2d 111, 117–18 (5th Cir. 1992) (“[T]he government’s policy is indicated by its consistent practice, not each exceptional regulation that departs from the consistent practice.”). Accordingly, forum status is an inherently factual inquiry about the government’s intent and the surrounding circumstances that requires the district court to make detailed factual findings. See Stewart v. D. C. Armory Bd., 863 F.2d 1013, 1018 (D.C. Cir. 1988) (holding that “identifying the government’s intent . . . raises inherently factual issues that cannot be resolved on a Rule 12(b)(6) motion”); Air Line Pilots, 45 F.3d at 1154 (same). And the ultimate question is whether the facts indicate the government intended to open a nontraditional forum to expressive activity. See Cornelius, 473 U.S. at 802 (“The government does not create a public forum by inaction or by permitting limited discourse, but only by intentionally opening a nontraditional forum for public discourse.”).

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13 Church on the Rock v. City of Albuquerque, 84 F.3d 1273, 1276-77 (10th Cir. 1996) (relying on senior citizen center policies to determine forum status of senior centers); Paulsen v. County of Nassau, 925 F.2d 65, 69 (2d Cir. 1991) (relying on county charter and local law as indicia of county’s intent to dedicate coliseum to a broad array of public and expressive purposes); Gilbert I, 920 F.2d at 884 (relying on unwritten GSA policy banning demonstrations from the covered portico).

14 Church on the Rock, 84 F.3d at 1278 (holding that senior centers were designated as public fora because the city had “permitted lectures and classes on a broad range of subjects by both members and non-members”); Huminski, 396 F.3d at 91 (holding courthouse parking lot is not a public forum because there was no evidence the government did anything to designate it as such).

15 Grider v. Abramson, 180 F.3d 739, 748 n.11 (6th Cir. 1999) (relying on stipulation of the parties that courthouse steps are a public forum).

16 Paulsen, 925 F.3d at 70 (holding that coliseum grounds are a public forum, in part, because the property can accommodate a wide variety of expressive activity without threatening the government function of the facility); Greer v. Spock, 424 U.S. 828, 835– 37 (1976) (holding military reservation is not a public forum); Adderley v. Florida, 385 U.S. 39, 47 (1966) (same as to jailhouse).

17 Widmar v. Vincent, 454 U.S. 263, 267-68 (1981) (holding university’s policy of accommodating student meetings created a forum generally open for student use); Paulsen, 925 F.3d at 70 (“The grounds of the Coliseum have been used for parades, political rallies and speeches, religious weddings and circuses. . . . Routinely, banners have been displayed by patrons . . . . Significantly, . . . many groups, including war veterans, the Christian Joy Fellowship and the Salvation Army, were regularly permitted to solicit contributions or distribute literature.”); Gilbert I, 920 F.2d at 884 (holding that unenclosed plaza of a federal building that houses courtrooms has been opened by the government as a public forum because “[d]emonstrations occur there on a frequent basis,” but holding covered portico was not opened as a public forum because occasional demonstrations there were undetected violations of GSA policy).
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3. Disagreement Over Opening the Restricted Areas as Public Fora

Here, the issue of the government’s intent is complicated by the disagreement between Denver and the Judicial District about the forum status of the Restricted Areas.

According to Denver, it intended to and did open all areas of the Plaza, including those within the Restricted Areas, to the public for expressive activity. In fact, Denver (one of the Defendants) entered into a Stipulation to this effect with Plaintiffs. Cf. Grider v. Abramson, 180 F.3d 739, 748 n.11 (6th Cir. 1999) (noting that parties had stipulated that courthouse steps are a public forum). In contrast, the Judicial District argues Denver’s Stipulation that the entire Plaza is a public forum cannot control the status of the Restricted Areas because Colorado law vests the judicial branch with inherent authority to regulate state courthouses. As such, the Judicial District asserts that its intent —not Denver’s— should control the forum status of the Restricted Areas.

This argument between Defendants raises difficult and novel questions about the intersection between a government property owner’s power to designate its property as a public forum and the rights of the occupant of the government property —in this case another governmental entity— to use that property without interference. The parties have not directed us to any authority addressing the question of whose intent controls when two governmental entities disagree about the status of the same forum, and our own research has not revealed any decision precisely on point. But a review of the evolution of the Supreme Court’s doctrine on speech forums reveals some fundamental principles that may guide resolution of this difficult question.

The Supreme Court has not always recognized a First Amendment right of the public to use publicly owned property for expressive purposes. Indeed, the Court’s early jurisprudence recognized the absolute right of the government to exclude the public from using its property. See Davis v. Massachusetts, 167 U.S. 43, 46–47 (1897); see also Geoffrey R. Stone, Fora Americana: Speech in Public Places, 1974 Sup. Ct. Rev. 233, 236–37 (discussing the Supreme Court’s early forum jurisprudence). In Davis, the Court considered a First Amendment challenge to a Boston city ordinance forbidding “any public address” on public property “except in accordance with a permit from the mayor.” 167 U.S. at 44. The Supreme Judicial Court of Massachusetts had affirmed a preacher’s conviction for violating the ordinance by preaching on Boston Common without first obtaining a permit from the mayor, stating “[f]or the Legislature absolutely or conditionally to forbid public speaking in a highway or public park is no more an infringement of the rights of a member of the public than for the owner of a private house to forbid it in his house.” Id. at 47 (quoting Commonwealth v. Davis, 39 N.E. 113, 113 (Mass. 1895) (Holmes, J.)). The Supreme Court unanimously affirmed, concluding that “[t]he right to absolutely exclude all right to use necessarily includes the authority to determine under what circumstances such use may be availed of, as the greater power contains the lesser.” Id. at 48. Under the Supreme Court’s jurisprudence at the time, the government —as the owner of public property— retained an absolute right to exclude the public from that property, just as any private property owner would have the right to exclude others. See Stone, supra, at 237 (“[T]he state possessed the power absolutely to prohibit the exercise of First Amendment rights of speech on public property simply by asserting the prerogatives traditionally associated with the private ownership of land. The complex and difficult problem of the public forum had been ‘solved’ by resort to common law concepts of private property.”).

Later, the Supreme Court revisited the question of the public’s use of government property for expressive purposes and again relied on traditional notions of private property ownership. See Hague v. Comm. for Indus. Org., 307 U.S. 496 (1939). In Hague, the Court considered the constitutionality of city ordinances prohibiting all public meetings and leafletting in streets and other public places without a permit. Id. at 501–03. Departing from its analysis in Davis, Justice Roberts, writing for a plurality of the Court, stated:

Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens. The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but it must not, in the guise of regulation, be abridged or denied.

Id. at 515–16. Justice Roberts’s position accepted the underlying premise of Davis —that the owner of government property enjoyed the same prerogatives as any private property owner— but then extended that premise to predicate a “public forum right upon established common law notions of adverse possession and public trust.” Stone, supra, at 238. See also Harry Kalven, Jr., The Concept of the Public Forum: Cox v. Louisiana, 1965 Sup. Ct. Rev. 1, 13 (describing Justice Roberts’s analysis in Hague as establishing “a kind of First-Amendment easement” in which the public, through long use and tradition, has acquired a right to use certain types of public property for First Amendment purposes).

Although Justice Roberts spoke only for a plurality of the Hague Court, his formulation has since been accepted by the Supreme Court as the prevailing rationale underlying the concept of traditional public fora. See, e.g., Perry Educ., 460 U.S. at 45 (defining traditional public fora by adopting Justice Roberts’s “time out of mind” description). Even in the context of a traditional public forum in which the government property owner’s power to exclude and curtail use is sharply circumscribed, the underlying rationale is premised on traditional notions of private property ownership. Indeed, the government’s power to control speech in a traditional public forum is circumscribed precisely because the public has, through the extent and nature of its use of these types of government property, acquired, in effect, a “speech easement” that the government property owner must now honor.

The Supreme Court has continued to rely on traditional notions of property ownership to describe the government’s ability to control the use of its property. For example, the Supreme Court has recognized that the government, “no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated.” Greer, 424 U.S. at 836 (emphasis added). This includes the ability to designate portions of government property for expressive purposes. See Perry Educ., 460 U.S. at 45. But the underlying rationale of a designated public forum is that the governmental entity with control over the property can decide whether and to what extent to open nontraditional fora to public speech. See Christian Legal Soc’y Chapter of the Univ. of Cal., Hastings Coll. of Law v. Martinez, 561 U.S. 661, 679 (2010) (“[I]n a progression of cases, this Court has employed forum analysis to determine when a governmental entity, in regulating property in its charge, may place limitations on speech.”) (emphasis added)).

In this case, the record before the district court at the preliminary injunction hearing indicated that Denver is the owner of the Courthouse and its surrounding grounds. It was also undisputed that there is no lease agreement between Denver and the Judicial District that could have transferred some of Denver’s property interests to the Judicial District. And the Judicial District is not the only occupant of the building; the county also has courtrooms in the building. As a result, Denver’s intent will be particularly relevant to a determination of whether the Restricted Areas were designated as a public forum.

Nevertheless, the Judicial District argues Denver may not unilaterally designate the Restricted Areas as public fora because, under Colorado law, the state judicial branch is endowed with inherent authority as an independent and co-equal branch of government to regulate state courthouses. The first problem with this argument is that it ignores the limits of that inherent authority. Although Colorado permits its courts to do all that is “reasonably required to enable a court to perform efficiently its judicial functions, to protect its dignity, independence, and integrity, and to make its lawful actions effective,” the Colorado Supreme Court has recognized that this inherent authority is not without its limitations. Bd. of Cty. Comm’rs of Weld Cty. v. Nineteenth Judicial Dist., 895 P.2d 545, 547–48 (Colo. 1995) (quoting Pena v. District Ct., 681 P.2d 953, 956 (Colo.1984)). Specifically, the “court’s inherent authority terminates when its ability to carry out its constitutional duty to administer justice is no longer threatened.” Id. at 549.

On the existing record, the Judicial District has not demonstrated that Plaintiffs’ First Amendment activities interfered with the ability of the Judicial District to carry out its essential functions. Mr. Steadman testified that Plaintiffs’ pamphleteering presented no security risk to the Courthouse. And the Judicial District presented no evidence indicating that the narrow preliminary injunction issued by the district court would interfere with its judicial functions. On the record before us, therefore, the Judicial District has not demonstrated that the preliminary injunction issued by the district court implicates the court’s inherent authority.

But it is also true that Denver’s statement of its intent is only one factor to be considered by the district court in determining whether a permanent injunction should issue. Recall that the government’s statement of policy should be weighed against the evidence of its actual practice to avoid post hoc justifications. See Air Line Pilots, 45 F.3d at 1153; Hays Cty. Guardian, 969 F.2d at 117–18. Denver’s concession in the Stipulation and its expressions of past intent could be motivated by fiscal or other considerations that are inconsistent with its actual practice.

For example, although the evidence indicated that some expressive activity has occurred in the Restricted Areas, those occasions may have been “isolated incidents of undiscovered violations,” rather than evidence of affirmative acts to open the Restricted Areas as public fora. Gilbert I, 920 F.2d at 885. And a contrary intent might be gleaned from the design of the Restricted Areas and the extent to which public and private areas are clearly separated. See Grace, 461 U.S. at 179–80. Also of importance in assessing whether the Restricted Areas have been designated as public fora is the extent to which doing so is incompatible with the primary use of the Courthouse. See Cornelius, 473 U.S. at 803. That is, it would be strong evidence that Denver did not intend to designate all of the Restricted Areas as public fora if to do so would destroy the primary function of the Courthouse. Or in different terms, the district court must assess whether it is credible that a governmental owner would construct a courthouse and install state and county judicial operations within it, only to designate public fora so intrusively that the essential function of the courthouse is thwarted. Thus, although the Stipulation provides some evidence on the question of whether the Restricted Areas have been designated as public fora, it is not alone determinative of that question.

III. CONCLUSION

Based on the record before it, the district court did not abuse its discretion in granting Plaintiffs’ request for a preliminary injunction. We therefore AFFIRM the order entering a limited preliminary injunction in favor of Plaintiffs, and REMAND for further proceedings consistent with this decision.

DIY legal strategies for defendants to give their lawyers a running start

If you’ve been arrested at a protest action you’ve got more legal options than paying the fine or taking a plea deal. Whether or not your act was constitutionally protected, or should be, or whether it was civil disobedience and was meant not to be, there are a couple good reasons to fight your charges in court. First, to draw further attention to your issue, and second, to give your prosecutors more incentive to offer a better plea deal. They might even drop your charges altogether.

Let’s assume you have the time to attend multiple court dates and that your low income means you qualify for a public defender.

Don’t have the time?
If you don’t have the time, make it. Every court appearance is a chance for a press release. Example: City Prosecutes Activists Instead of Indicting Killer Cops. Not only are you forfeiting the opportunity for more publicity, you are resigning yourself to a stiffer plea offer. Probation, or deferred judgement, or deferred prosecution for a probationary period, will take a larger chunk of your time from activism than a few court dates.

If you are eventually planing to hire a private lawyer, the same initial strategy applies. Your inconvenience is nothing compared to the wrench you’re throwing into the city’s injustice machine, by merely fighting your case.

Let’s assume also that you have bonded out of jail. Your first court appearance will be a BOND RETURN DATE. If you did not bond out and remain in custody, your first court appearance will usually be the morning after your booking and will be called an ARRAIGNMENT. Both are supervised by a magistrate before whom you will be expected to plead guilty or not guilty.

You are going to do neither.

That said, if you are still in custody, your first objective would be to hasten your release, hopefully on a PR bond. In such case, the following steps need not be uncompromising.

City Attorneys
If your event is a bond return date, you will first be called out of the courtroom by a city attorney to discuss a plea deal. Here’s where most people think they can candidly argue their case in hope that the prosecutors will decide to drop the charges. Those defendants are only giving the city more cards to deal against them. Your first move will be to DECLINE TO SPEAK TO CITY ATTORNEYS. You can ask what deal they are offering, but you say nothing about your case and admit to nothing. You are better off not even sitting down. Tell them from the hall that you have nothing to discuss, have them please bring your case before the magistrate.

The Magistrate
When the magistrate calls you up, tell him or her that you DO NOT CONSENT TO A MAGISTRATE adjudicating your case, you want the judge to which you are entitled. The magistrate will have to reschedule your court date before a judge, in the division to which your case was assigned. This might be one or two weeks later.

Bond Return Date, Round Two
Your second date, this time titled an “Arraignment” will be another chance for the city attorneys to pretend they have a right to interview you. Again you brush them off. When you’re finally called before the judge, he or she will ask you what you plead. Say that you CANNOT PLEAD BEFORE CONSULTING AN ATTORNEY. Asked if you have an attorney, say no, you require a public defender.

The judge will tell you a public defender will only be assigned after you’ve entered a not-guilty plea. Stand your ground, ask how are you supposed to make a legal decision without the advice of the public defender? The judge will decide to enter a not-guilty plea on your behalf, to which you will OBJECT.

A plea made over your objection will be a potential element of a future appeal. Likewise was the attempt by city attorneys to pretend they had authority to discuss your case without your having an attorney present. These will be two factors that will give you leverage in negotiating a better plea offer.

The judge will ask if you want a jury trial, to which you will answer YES. You’ll be assigned a pretrial conference date, or reset date, and a trial date. Your next task will be to apply for a public defender.

Representation
If you make too much money to qualify for a public defender, you might want to hire a lawyer, or find one who is sympathetic to your cause who can represent you Pro Bono. If you are smart enough on your feet, you can represent yourself PRO SE.

One possible advantage to proceeding Pro Se is that the city might eventually drop the charges, calculating that if you couldn’t find an attorney to defend your criminal case, you are unlikely to find one to bring a civil suit against the city for false arrest. They risk little to drop your case instead of spending an awkward day in court trouncing a DIY defendant in front of a sympathetic jury of his peers.

If your application for a public defender is accepted, they’ll also waive the $25 jury fee. If you can’t apply for the public defender within 30 days of your forced not-guilty plea, you should file the jury trial request yourself and pay for it.

No not under any circumstance elect a trial by judge. Denfense lawyers call that a “slow motion guilty plea.” You’ll soon learn that judges work for the same side as the prosecutors. So do the public defenders, but they can serve your purpose for the time being.

In a future article I’ll discuss what to do with public defenders.

Occupy Denver’s Caryn Sodaro was rail-roaded again by Denver courts


DENVER, COLORADO- Weld County had twice declined to remit jailed Occupy Denver activist Caryn Sodaro to the Denver County courts for outstanding cases, but this week authorities conspired to bus Caryn to court without giving public notice. Instead of being greeted by a room full of supporters who had twice turned up to cheer for her as she faced contrived and punitive charges, Caryn was whisked before Judges Rodarte in 3F and Farrenger in 3H. Alone and no doubt demoralized, Caryn plead guilty to both obstruction and making threats, accepting concurrent sentences of 150 days. We haven’t yet uncovered the paper trail for her off-leash citation. but the Lindsey Flanigan Star Chamber probably threw that at her too.

Caryn’s cases had been continued to the week of December 7, but the criminal justice complex broke the rules, Caryn, and us too. Caryn Sorado had been unreachable for a week at the jail in Greeley. No one had been able to reach her. Inquiries had just been made to her case manager.

Caryn could not have know that last week Monk beat the obstruction charge.

And Caryn never made the threat of which she was accused, in fact it was the reverse. The addict who made the complaint had been evicted from our protest encampment by Caryn. The accuser hoped to get a protection order to keep Caryn away from the protest while she, the accuser, moved back in. Caryn had intended to repudiate the charge. Actually we were all certain the addict would not turn up in court.

Instead Caryn followed some court employee’s advice and doubled her jail stay-cation. Friends are planning a road trip to Greeley for a visitation and maybe cacophonous serenade, not to mention, desperate apologies for having been conned by the justice system.

Tragically a number of us were flyering outside the courthouse on Wednesday precisely when Caryn was being railroaded inside. We only learned of her appearance when checking on another schedule anomaly that afternoon, a scheduling ambush actually.

We’re coming to understand that the Denver Sheriffs play underhanded shell-games with detainees to maximize the inconvenience for inmates and loved ones alike.

The good news is that today we filed two complaints with the Office of the Independent Monitor directed at Denver Sheriff malfeasance. Both are cases of warrantless detention. Dead-nuts, incarceration without the authority to do it. More filings are in the works addressing bond-setting abuses and arbitrary release delays. Now we’ll throw Caryn’s habeas violation in for good measure. Occupy Denver may be going without Caryn’s loud angry voice, but we’re still hitting the Blue Meanies hard, and we’re as unpopular as ever.

EVICTED! Denver police conduct sixth raid on courthouse protest camp, this time seizing signs, flags & tombstones.


DENVER, COLORADO- Occupy Denver’s Jury Nullification Education Protest Camp had gathered steam Labor Day weekend, overnight participation growing to thirty sleepers Monday night, but at 4:30pm Tuesday DPD riot cops swept through the camp in force. Activists were allowed to save only what they could carry. All other items were considered “abandoned” and then removed by the officers as “encumbrances” as outlawed by notices recently posted by DPD. Nearly a hundred police officers in riot gear, including two vehicles carrying SWAT soldiers, swooped upon the Lindsey-Flanigan Plaza encampment when the afternoon camp security team had dwindled to four. Only one camera was on hand to record the police raid. Over the course of 45 minutes, homeless contingents were able to scramble to preempt the DPD confiscating their personal items. Once again the police appear to time their raid when most of the protesters have stepped away. Will Occupy Denver have the stamina and resilience to stand against the constant stealing of its resources?

The Occupy Denver participation is already weakened by counterinsurgent strategies to demoralize and marginalize their actions from within. The Denver activist community has seasoned social media promotors and videographers who are being waylaid from assisting the city’s highest profile protest since the Occupy movement of 2011.

Two arrests that made national news, a court order, a “Plaza Order” amended, a preliminary injunction granted, a contempt of court ruling declined, four more arrests for erecting “encumbrances”, then two more. A total of six raids, two evictions, and not a hope that any of the charges will stick. Next the District Attorney will be subpoenaed. Can an action be any more successful?

Delayed Habeas Corpus for Eric Brandt, then two Westminster kangaroo courts, despite $3,500 bond being paid.


WESTMINSTER, COLORADO- It was quite a day for Eric “Fuck Cops” Brandt, in custody at the Denver County Jail since Monday August 10, as usual for exercising his First Amendment rights. Even by Wednesday the jail wouldn’t allow Eric visitors or bail. Next they delayed his court appearance almost two hours. Then the judge wouldn’t grant a PR bond, choosing to require the homeless veteran to raise $3,500 for bail. Then the clerk insisted the entire docket be completed before the bond paperwork would be available. Eventually Eric’s bond was covered by a benefactor, but before Eric could be processed for release, the City of Westminster transferred him to their municipal court for a full afternoon of hearings.

In Westminster, Associate Judge Paul Basso refused Eric’s motion for a jury trial then immediately declared court to be in recess and walked out as Eric’s attorney David lane tried to voice his objections. Funny story: though Basso had declined the motion, he misspoke and declared that Eric was to have a jury trial, so Basso had to reenter the courtroom to reiterate for the record: there was to be no jury trial. This time Lane offered to put Brandt’s former public defender on the stand, he was there waiting, to attest that Brandt had never declined his right to a jury. Judge Basso refused and again walked out.

Next up, Presiding Judge John Stipech declined motions to dismiss, to recuse, or to appoint a special prosecutor for Brandt’s cases. Stipech declined to hear witnesses present and ready to testify that Westminster staffers were overheard plotting to incarcerate Brandt no matter what. No hearing, set all the trial dates up like bowling pins.

Next on the agenda, Judge Stipech ordered Eric to remove documents he’d posted to “his Facebook”: confidential police internal affairs reports sloppily surrendered during discovery and now published in Westword. Eric was supposed to comply whether in custody or homeless, or be found in contempt.

Brandt was put back en route to Denver while attorneys were asked to set the upcoming court dates. Suddenly Eric’s transport was ordered to return so that the Westminster prosecutor could motion to revoke Eric’s multiple bonds on account of his new felony charges in Denver. Fortunately the bond revocation hearing was set for Sept 2 to allow David Lane time to subpoena witnesses. This date will also follow the Aug 31 hearing in Denver where Lane has subpoenaed the Denver DA to account for the unconstitutional train wreck.

Now back at Denver Jail, Eric is being kept overnight with the excuse that the pretrial services office was closed and doesn’t reopen until 8AM. Eric Brandt has been incarcerated since Monday afternoon, his bond met, his tattoo assuring he can’t be confused for anyone else. He’s front and center today on the Denver Post and Westword, but the city’s top law enforcers can still pretend to delay his release on technicalities. They spent eighteen hours “running his fingerprints” when everyone in downtown Denver can recognize Eric Brandt a block away, three, when he’s got his sign.

Eric Brandt and the horrible, very bad judge.


WESTMINSTER, COLORADO- Eric Brandt was so sure he was going to jail he got a tattoo. The one-man-band of protest movements had court on August 3rd before Westminster Associate Judge Paul D. Basso, who’d declined on a technicality to give Brandt a jury trial. Eric calls him “Judge Fatso” and lampoons Basso on the courthouse steps and so didn’t expect more than a brisk push into jail. Knowing they’d take his “Fuck Cops” t-shirt, Eric got a hasty tattoo. “It hurt. A LOT” said Eric, who did not intend to cease his protest behind bars. It’s the identical logo, placed just below the sleeve-length of a jail smock, faced forward on the arm he extends to shake hands. Eric’s lawyer, the formidable David Lane, joked that he was stung by Eric’s lack of faith in his attorney.

But Eric Brandt has suffered for two years battling alone against the whims of Westminster injustice. He’s served jail time, been beaten, threatened, tasered so many times the seizures it induces no longer make him pee. And when Judge Basso took the bench the courtroom audience got to see the kangaroo court prepared for Westminster’s public enemy number one. Even David Lane’s sober motions and objections bounced off the stubborn hanging judge.

Ultimately Judge Basso was smart enough to know he had to grant a continuance because discovery was only granted ten minutes before the session started. Discovery included internal affairs investigations of Sergeant Buckner, Eric’s repeat accuser and frequent assailant. Judge Basso asked the sergeant if he’d signed off on their release. “Objection! You’re not his lawyer!” Judge Basso ordered that the documents be surrendered to the court until he’d ruled on their relevance. “Objection!” The audience echoed “WTF!”

David Lane’s motions to dismiss, and for a special prosecutor, and for the judge to recuse himself for interposing himself as advocate for the city, were ignored. Each time the civil liberties expert cited legal precedence, Judge Basso would answer “it’s been a while since I’ve read that one, but I remember its meaning differently.” The city attorney and judge made clumsy attempts to feed each other cues.

Eric Brandt was forced to wave speedy trial in exchange for his continuance, to give his attorney time to peruse the discovery evidence. David Lane objected that “my client has to choose which constitutional right to sacrifice.”

Westminster had hoped to jail Eric Brandt this week to prevent him from getting on this year’s ballot for the city council election. They had to let him walk. A powerful attorney and a roomful of spectators got in the way of someone’s Judge Roy Bean act.

Eric was in tears as he thanked his supporters. His next case is Thursday, August 6, same accusers, same arresting officer. Same crime, telling cops to go fuck themselves. Eric will need the same court support. Trust me it’s entertaining. Between Brandt and Lane, there is no end to the laughter, but I had no idea municipal court would be so suspenseful. The best lawyer around meets his match against Tweedle Dumb.

Eric Brandt has dozens of cases pending in Westminster. The hope is that the provincial berg will figure out it has treed the wrong bear. They’re up against the First Amendment and two tireless defenders.

UPDATE: Eric’s August 6th court date has been continued, it’s now TBA. His next scheduled jury trial is August 13 although word is it will be postponed as well. A motions hearing now set for Wednesday August 12 will probably decide the fate of all of Eric Brandt’s cases. I’m thinking, when a city gives less than a day’s notice to cancel a jury trial, they’re probably doing some heavy thinking. Congratulations Eric!

Argonaut Liquor helped city of Denver jail Caryn Sodaro, the DPD’s most vocal critic of police brutality.


DENVER, COLORADO- On Thursday July 30 in Denver Municipal Court, Argonaut Liquor succeeded with what the City of Denver and its violent policemen have been trying to do for years: take down Occupy Denver activist Caryn Sodaro. Earlier this year, Caryn was attempting to film the DPD as they brutalized a handcuffed detainee in the parking lot of the liquor store on Colfax Ave. When store managers couldn’t block her camera phone with their hands, they authorized officers to arrest Caryn for trespassing. Of course they had to pretend she’d been warned once before.

Yesterday a jury found Caryn Sodaro guilty of trespass, though they heard scant mention of the crime she was trying to document and prevent. It didn’t come up and video evidence was snipped to exclude it. Videos from multiple vantage points were excluded and witnesses were not questioned about the brutality they saw. Protesters were characterized as protesting the police, not police VIOLENCE and not protesting to PREVENT IT.

In one of the trial’s most surreal moments, the city attorneys were trying to admit officer body cam evidence taken of Caryn after her arrest, angrily describing the brutality she witnessed. The prosecutors hoped her coarse language would displease the jury. The defense attorney objected for that reason, even though it would have been the only evidence to explain why Caryn risked arrest, if indeed she knew she was not allowed on the Argonaut lot. The judge disallowed that video in the only ruling she made in favor of the defense.

Caryn’s protesting activity has been given area restrictions before and friends know how strictly she adhered to them, unconstitutional as they were. Drivers giving her rides had to take detours to keep Caryn geographically safe. When a defense witness tried to add this detail, or that he’d returned often to the Argonaut even while the managers had testified that he too had been “trespassed”, the defense attorney cut him off, stopping his own friendly witness with “I ask the questions here.”

I’ve seen valiant public defenders, but this free public servant was determined to give Caryn her money’s worth. No character witnesses, no context of Caryn’s activism, nor even sympathy for her altruism. The argument was restricted to: did Caryn trespass or not, and Argonaut employees perjured themselves claiming that Caryn had been instructed twenty days before that she was “trespassed” from Argonaut’s property. That incident was provoked by Caryn being harassed and humiliated by an in-store Argonaut rent-a-cop who followed her to the checkout stand and told her she was “too drunk” to purchase a bottle of wine. He initiated a shouting match, not she, and that’s another detail the PD declined to exploit.

Did I mention Caryn’s public defender opted to forgo his opening statement! The jury was let to assume the case was about a retailer’s property rights versus a group of protesters’ whim for trespassing.

Even when public defenders are brighter than you expect, it’s important to remember they don’t work for you. Public defenders serve the judicial system, this one determined to preserve law and order even when it is demonstrably racist and violent. Mr. DiPetro, the Judge and the city attorneys colluded to frame Caryn’s prosecution as independent of the DPD’s agenda to target her and bring her down. At moments of the two day trial, the audience was equal parts fellow activists, armed sheriff deputes, and DA attorneys gathered to oversee the exploitation of charges pressed by Argonaut Liquor. The only laugh the audience was allowed was when officer descended on Caryn, eager to put her in handcuffs, before she even had time to sign the paperwork required to imprison her.

CASE DISMISSED! City of Denver drops charges against Occupier Patrick Jay


DENVER, COLORADO- Prosecuting attorneys for the City of Denver were granted their own motion to have their case against Patrick Jay dismissed for lack of evidence! Prominent civil rights lawyer David Lane was informed this weekend that all charges against Patrick have been dropped.

Patrick was arrested last December while returning to his car after a ?#?BlackLivesMatter? protest. He was seized by SWAT officers while VIDEOTAPING the snatch and grab arrest of fellow activist Max Mendieta. Patrick was charged with obstructing traffic while marchers staged die-ins at prominent Denver intersections. *

According to police, HALO cameras recorded Patrick and others blocking vehicles. The cameras might also have confirmed that their actions prevented cars from running over the marchers laying prone on the pavement. We’ll never know because the DPD now says the footage is gone. After defendants declined to take plea deals, Patrick’s defense attorney David Lane learned the HALO footage would not be available for discovery because the surveillance files had been accidentally overwritten! In view of this, David Lane motioned for a dismissal, but city attorneys assured the judge that there were DPD officers enough to bear witness against Patrick Jay. Lane vowed to compel those officers to first have to pick Patrick from out of a line up. Patrick’s jury trial was set for April, but last week city attorneys tendered their own motion for a dismissal and that motion was granted.

Patrick Jay’s charges were dropped and his First Amendment rights were vindicated, but of course the Denver Police achieved their goal of intimidating activists who have to brace themselves for arbitrary arrest even though they know their rights. Over the course of many months of marches, participation has suffered attrition not just because people are frightened, don’t want to or can’t subject themselves to arrest, but some activists who had no alternative but to take plea deals now cannot risk violating the terms of probation which forbid their participation in protests.

Only a few days after Patrick’s arrest, he and I were leaving another anti-police-brutality march when multiple DPD cruisers swooped up to us on the sidewalk. This time instead of jumping off and unto us, an officer in the lead vehicle shouted from his rolled-down window: “Scared you?!”

Yes, officer, you did. **

Arrests and harassment have helped the DPD reduce protest numbers. Because of favorable plea deals or inadequate legal representation, no one has yet had the chance to challenge the veracity of their charges, until now. Several cases, including Max Mendieta’s, are still pending. Max is also represented by David Lane. Hopefully the recognition of Patrick’s arrest being unwarranted will turn the tide.

————-
NOTES:
* PATRICK’S ARREST
WAS SURREAL. Everyone was returning to their cars, putting signs into trunks etc, when the police SUV carrying riot cops on its sideboards made a slow pass. This was a development we began to notice at earlier events. Even though the officers in riot gear might not have had to show themselves during a march, they would emerge afterward on their SUVs to cruise by our vehicles, almost to a stop as if scanning our cars looking for suspicious occupants. We didn’t think much of it except this time they stopped and the entire gang lept off to seize one of our group, Max Mendieta, as he walked the few solitary steps to his car. Patrick started to film the whole incident, from when police forced Max to the ground until they hauled him into custody. We’d reconstituted into a small group of less than a dozen, activists eager to dissuade further arressts, but the riot cops elbowed past us to seize another, which Patrick filmed, and then they grabbed Patrick. Patrick asked what they were arresting him for, but the officers wouldn’t say, only that it would be listed on his arrest warrant.

Ironically their irreverant answer turned out to be incorrect. But first I want to tell you what happened when the police drove off. They left an officer behind. The SUV loaded with riot cops, minus one, stopped several car lengths away when someone noticed the error. Their sargeant had been left on the street, in his cumbersome riot gear, unable to fit in the ordinary cruisers, and barely able to catch up with the waiting SUV. I guess the SUV driver didn’t want to risk backing over his sargeant, so the fat man lumbered slowly back to his perch, his riot gear clinking with every plodding step, like a minuscule robocop, the crowd barely able to sustain its “nah-nah-nah-nah” chant for laughing so hard.

Perhaps as payback, the arrestees that night -there were four total- had to wait sixteen hours “for their fingerprints to clear.”

Back to Patrick’s undeclared charges. Due to what we could only construe to be a typo, Patrick’s citation read “database-error” where the offense was supposed to be. Patrick had to sit in jail for 16 hours, post bail, await arraignment, and seek a lawyer, knowing only that he was charged with database-error. When the magistrate asked if he pled guilty, Patrick said “To what? Database error?” “No.”

** YES THERE’S MORE TO THIS STORY TOO. After the DPD pulled their gag, the officers watched as we walked to the building under which we’d parked our vehicle. The hour having become late, we discovered the stairwell doors locked. We imagined the officers laughing as they saw us circle the office building testing every door. We soon realized that our only recourse was to descend the car ramp to the parking area, but we were afraid that the police would follow and corner us there, out of view of other late night passersby. Security cameras or no, we feared what two dozen or so cops could do to two pedestrians; what we know often happens to homeless indigents in back alleys and poorly lit spaces; what happens to African Americans in broad daylight while they scream “I Can’t Breathe!” So we waited until the police cars lost interest before we ventured down the ramp.

Not being able to count on even our own police to obey the law, knowing the brutality of which police are capable, and witnessing the capriciousness of police abuse of authority, is the terror that defines living in a police state.

I’ll believe corporations are people when one is not let off a criminal probe

I’ll believe corporations are people when one is declined the chance to pay a fine instead of face criminal penalties. Imagine OJ Inc or Pistorius Inc or Bernie Madoff being able to pay off US marshalls instead of going to jail. Next question, who is the beneficiary Toyota’s $1.2 Billion payoff?

Is this FBI-speak? Ima throw you off this balcony and break you in half boy


Wherever did NY congressman Michael Grimm learn such language? I’m guessing the FBI edition of Dale Carnegie’s How to Win Friends and Influence People, Grimm being former FBI. If ex-officer Grimm isn’t prosecuted for MENACING, threatening to throw a DC news reporter off a balcony, it would seem only fair that the representative’s constituents be free to tease him with the same bullying words, and who knows, even mean them. I doubt Grimm himself is “man enough” to weather bluster coming his way, especially if spoken with intent. “HEY CONGRESSMAN! LET ME BE CLEAR TO YOU! If you disrespect us again, we’re going to throw you off this fucking platform! We’re going to break you in half, boy!” That heckle should be perfunctory at every next Grimm public appearance. Would it be illegal? It is. As it should be, in particular from the mouth of an offensive politician who appears to act with impunity. For example, I not only believe Grimm, I believe he’d get away with it. Does Grimm have to throw journalists from balconies before he is arrested? Would he be more than upbraided even then? It shouldn’t be up to reporter Michael Scotto to decline to press charges, the real victims are everyone who’ve now witnessed and felt this threat. And let’s press the FBI to apologize for their former agent, and promise to wipe “throw you from a fucking balcony” from their interrogation script.

Colorado Springs gay pride festival 2013 moves back into the closet

Haven’t we seen this countless times before: a nonprofit buys bigger britches forgetting that there was a reason it wore tight pink shorts, esthetics being the governing factor in neither case. Local Pride organizers may tell you they needed a larger park, but for what? The world’s loudest private barbeque? Over the span of two decades the annual Colorado Springs pride festival became the preeminent outdoor festival, dwarfing Spring Spree and Cinqo de Mayo in attendance and charm. The city even tried to dislodge it with its own “Diversity Fair” in lieu of formally endorsing Pride. And the authentic pride event took place where this traditional homophobic city had to look at it, smack dab in the middle of downtown, at town center, the square block of Acacia Park. This was also convenient for the pride parade which marched to it from blocks away. Convenient because the Springs gay community may fill a park, or a parade, hardly both, with barely enough leftover to be spectators. This year the festival is installing itself into America The Beautiful Park, formerly Confluence Park, formerly the unpaved ramshackle neighborhood in the lee of the coal power plant, adjacent too, as recently profiled in the local newsweekly, a toxic cleanup site. But mostly it’s a park invisible to anyone not going there and nearly inaccessible to them, by virtue of its single entrance and minimal parking. To ameliorate and confound access it’s going to be surrounded by police cruisers, so gay pride will be a guarded closet. Will enough of the gay community turn up to man the booths, trek 1.5 miles to the parade staging ground, and or attend along the parade route? Crowd enough to leave everybody feeling pride? Let’s hope so, this year of victory for gay marriage.
 
I haven’t been a loud advocate of gay marriage, not while grievous inequities mount worldwide, and especially as American gays clamor for the right to join the war making not end it. I was also disappointed by pride organizers in San Francisco who declined to name Bradley Manning as honorary grand marshal in response to the brilliant campaign by Bradley supporters: “Parade Marshal not Courts Martial!” What are the chances of that flying here? Last year we marched with a sign saying “I am Bradley Manning” and they took it literally, asking “And?”

Ditching schools to make American Taliban enclaves in Colorado Springs

COLORADO SPRINGS, COLO.- While secularist crusader Richard Dawkins was delighting evangelical atheists at a nearby college campus, addressing how the charter school movement is subverting public education with religious indoctrination, the local District 11 school board was selling off another two primary schools –to charter school privateers! Flipping moribund neighborhoods to the Christian Soldiers.

Is privatizing schools better than selling the properties to real estate developers? Communities need their schools. But yesterday’s decision means the neighborhoods of Jefferson Elementary and Irving Middle School will encircle Christian madrases, centers not of learning but militant god-on-our-side imperialism. The schools were closed in 2009 due to alleged declines in enrollment. If charter entrepreneurs succeed with their revival tent schools for dummies, they’ll turn more Springs neighborhoods into klan xenophobe enclaves.

Who wants to raise their kids around Xbox/drone suicide bombers in training, beside American Idiot parents? They recoil at the Taliban, its madrasa schools and suicide bombers, extremist misrepresentations of Islam. But in the West, Christian zealots are the norm, technology perhaps obscuring their imbecility, fighting for Our God and disposing themselves into the trash heap of war. Now Colorado Springs has two more soldier fodder incubators.

NPR: women berserkers, oil whores, Goebbels Surge, presidential DNA

I accidentally listened to NPR today, what an earful of crap! No wonder Americans are so uninformed, none more than self-identifying progressives, waylaid by Corporate Public shysters. Here’s what I overheard:
 
The Defense Department is running short on recruits so they need to draft women into combat roles. Leon Panetta has righted a constitutional injustice apparently and will deploy women into battle. Because women want equality to torture, join kill squads, shoot children, get PTSD, join ranks of homeless or commit suicide. Greatest gender advance since Virginia Slims.
 
NPR interviewed oil workers who shrug off risk like Algerian massacre and speak fondly of their rape of Africa. According to them it’s “all about the Benjamins” to pay cash for sports cars and ATVs, and international travel for access to “cheap women”. Funny, the interviewees declined to reveal their full names. The energy industry promises jobs, but decent people need not apply.
 
General “All Up In My Snatch” Petraeus is being credited with inventing a counterinsurgency tactic called “the Surge”. Yeah, we’ve heard of it. Formally just a word, the “tactic” is not military, but public relations, attributable to Joseph Goebbels, to minimize an escalation or troop buildup by pretending it’s temporary.
 
The Benghazi Kerfuffle, now a DC sideshow instead of the foreign relations comeuppance where US intervention operatives in Libya got their just-desserts, is being amplified to be a vehicle to kick off Hillary Clinton’s 2016 campaign. The ex Secretary of State was praised for her gravitas and standing, leading MSNBC to suggest that “diplomacy is in her DNA”. Spouses share DNA? Are talking heads confusing DNA with VD?

berserker

Ft Carson conducts pro forma town hall to clear way for environmental impact of proposed helicopter brigade

Occupy Colorado Springs protest at Crowne Plaza Hotel, Jan 26, 2012
OCCUPIED COLORADO SPRINGS- Ft Carson’s environmental PR team held what’s called a “draft Environmental Assessment,” prerequisite to their addition of a Combat Aviation Brigade to America’s “Best Hometown in the Army”. Except for a car-dealer and realtor giving their attaboys, the citizens comment section weighed solidly AGAINST expansion of war-making and war-training. In true pro forma, Garrison Commander McLaughlin shrugged off the opposition, stating that public input would be answered while the army proceeded as planned. And that’s where Occupy will have something to say.

The fundamental message from OCCUPY WALL STREET, and from the global movement at large, is that it’s the people who are in charge. Whatever corrupted system may have wielded the power to bring the world to the brink of chaos, the authority must be returned to the people. OCCUPY makes clear the people do not have to sit idly by while their rulers make decisions against their interests. OCCUPY reminds us the people will have a say in their own destiny.

An army hearing, about what it plans to do, in defiance of public outcry, is nothing that self-respecting citizens have to take sitting down. They didn’t, citizens came from as far as the Southeastern plains to present their testimonials, but after the citizen comment period ended, the holders of the meeting made certain to conclude that the Ft Carson expansion was advancing regardless. This inhospitalty even after almost uninterrupted patriotic fawning over Ft Carson’s soldiers and the role they play defending our liberty.

While everyone falls all over themselves to THANK A SOLDIER, let’s not confuse respect for deference. America is not ruled by a military junta. The Department of Defense is not our governing body. For all his authority and swagger, this camp commander does not overrule us citizens. WE are the boss of the army. We are his CHAIN OF COMMAND. When the people of Colorado Springs, the people of Colorado, or the people of the United States express our will, it’s the army’s role to say “SIR, YES SIR.”

I’m deeply troubled by an officer of the military who pretends that his fellow citizens are but a temporary impediment to his military plans. When a room full of citizens tells this commander that they don’t want helicopters over their airspace, I expect him to take heed. To do otherwise is purely insubordination of his superiors. All this patriotic militarism may be going to his head. This is a soldier after all, sworn to protect our constitution and America, meaning its people. DO YOU HEAR ME SOLDIER?

If you think I sound disrespectful, let me inform you that I’m a veteran too, of ANTIWAR actions. One of which involved a soldier of higher rank than this one, running up to me as I silently held a sign, and attacking me with his fists, knocking me over. CSPD policemen had to pull him off. I did not press charges, but I could have. That was not only assault. An officer of his stature knows it was worse than that: it was an attack on his chain-of-command. What incalculable gall, to presume to treat me as a subordinate upon whom he could visit his accustomed violence. On a citizen!

And that’s what’s got me worried, about where all this soldier-worship leads. Only a couple weeks ago, at a weekly sidewalk peace bannering, a fellow activist was approached by a soldier and sucker-punched in the face, right out of the blue, while his wife cheered from their car. Are you kidding me? This deference to soldiers has got to stop.

These are soldiers, and we’re right to thank them. Theirs is a thankless task. Well not thankless, they ask, and are given unending thanks. But theirs is a task no one wants, to have to dehumanize yourself, be made to kill, maim, torture, rape, often it turns out, exactly under orders. We’ve learned that soldiers are sometimes commanded to kill everyone in a 360 degree radius. “Free Fire Zones” mean to kill every living thing in sight. We learn too that pissing on your dead victims is taught as a coping mechanism, to dehumanize your adversary so as to suffer less PTSD and less guilt. And we’ve learned that the military has no followup plan to reintegrate their soldier-monsters to a life post-service. Homeless vets from Vietnam onward are a testimony to the incompatibility of war service in horror zones to a return to normal civilian life. When the army creates killer-thugs, it means to dispose of them in further war zones, it means for them to re-up, or die prematurely from DU exposure. Yes, soldiers are to be thanked, but kept at arm’s length, like Fukushima heroes, radioactive. By design, their duty rendered them untouchable, to them eternal thanks and goodbye, unless you are prepared to weather the propensity to antisocial violence and domestic abuse the veterans of fragile countenance bring back with them. Certainly we cannot elevate the more hardened professional killers, who know only means foul and heartless, to positions of authority above citizens.

It irks me to no end to be goaded by this camp commander, who after hearing the public speak, admonished us in the end that our protestations will amount to nothing. How dare he, this insubordinate would-be coup leader?

Shall OCCUPY remind you, America is ruled by its people. This is a Democracy. WE THE PEOPLE are in charge!

Yes it may look right now like the suits are in charge, the men behind you, patting your back, the men with businesses who profit from war-making. In other cultures they are known as war profiteers, and in other periods of history they are executed. Who should profit by war? Well another aspect about OCCUPY is that these business vultures have been put on notice their time has come. No sustainable model of global democracy has room for predatory warmongers who keep wanting to pull their fortunes from war.

The people will be in charge of this nation, not the military or its business enablers. And when the people say enough, it’s going to be the military’s place to do the people’s will. If the people say no helicopters, or not in my airspace, or stop with your immoral wars, the army better stop its posturing, or find itself in the brig. Thank you soldier, but stand down. When the people tell you to stand down soldier, you had better do it, on the double.

For my part I will not decline to press charges a second time against military careerists who overstep their authority. And I will not again brook one iota of insubordination from someone sworn to serve this country. We American citizens are in charge of what’s done in our name. Do you hear me soldier? Sir, Yes Sir? Wise move soldier.

Springs congressman Doug Lamborn tells citizens he answers to private propertied constituents not to public

Congressman Doug Lamborn's office at 1272 Kelly Johnson Way doesn't permit protesting
COLORADO SPRINGS- Local citizens have had plenty to protest with Congressman Doug “Obama is a Tar-Baby” Lamborn, so now the Tea Party bigot has put up a sign, NO PROTESTING. Lamborn declined to meet with community leaders from the NAACP on Monday, or Move-On organizers on Wednesday. Are you in Colorado Congressional District Five? Well, you may neither SOLICIT a meeting with your government representative, nor LOITER hoping to wait him out. Politicians like Lamborn who want to shove undemocratic corrupt legislation down people’s throats, and spout deeply offensive racist rhetoric out of sheer stupidity, have to hide where constituents can’t reach them.

Congressman Lamborn office park with AECom and other weapons industry swine
Situating your office where your constituents can’t reach you reminds me of former Senator Allard’s office in the Plaza of the Rockies, where security guards forbid entry to anyone who didn’t look investment-banker friendly.

The plaza complex is now the Booz Allen Hamilton building, the world’s largest weapons industry firms, chaired by James Woolsey and his wife, one of the Colorado College trustees. You’ll note that one of Lamborn’s neighbors is AECOM, another giant war profiteer.

At least Allard chose an office which was centrally located, only a block from Congressman Hefley. Doug Lamborn’s office is situated in an industrial office park where no one can hear you scream.

So is isolating yourself from you constituents now standard MO for legislative office-holders? Not really. Representative government is hardly where you want to take a stand against a public’s right to freedom of speech and freedom of assembly. Especially someone espousing to be a patriot for the Tea Party.

Actually, if Lamborn wants to assert that his corporate representation gig is “private property,” I’d say the crafty bugger is right.

Congressman Lamborn says NO SOLICITING, NO PROTESTING, NO LOITERING
No shirt, no shoes? No representation.

Huckabee out, Trump out; Obama too can bow out, has same nothing to offer

hope change justice peaceIN LIGHT OF TERM 2008-2011,
IDEA FOR OBAMA 2012: If you’re neither going to close Guantanamo NOW, unmake war, support popular uprisings against authoritarianism, intercede with the environment, challenge corporate malfeasance, rein in the banksters, reverse class inequality, repeal the Patriot Act, reestablish transparency, restore justice, nor even reignite faith in American democratic righteousness,
MIGHT I SUGGEST YOU DECLINE presuming to need a second term? Because really, what is it you propose you have to offer?

You can lead a horse to water, but will it give a statement to the press?

From the horse’s mouth: Nope.
On advice of lawyer, don’t talk about arrest. On advice from retired lawyers: civil liberties issue iffy. Advice gleaned from the overworked ACLU: case not as good as others we’ve got. Advice from friends: hope for a plea deal. Request from PPJPC colleagues: pretend we don’t know you. Advice about the press: “Generally they don’t have much interest in this kind of thing.” FAIL.
 
I have to confess, my pretending yesterday about an intentional plan to fly under-the-radar was sarcasm. I had no idea the extent to which the sublimation of the “MEPP” Kulp/Nace arrests was premeditated. No mention of the court date in the PPJPC Active For Justice weekly email, the arrestees’ spirits driven down by the defeatism prescribed above. I raise this criticism not to victimize the defendants further, but to question this apparently endemic predilection for hemlock.

Protesters say arrests unjust

Exactly how valuable is it to have colleagues with legal experience enough to vacillate about your courtroom chances being between cross-your-fingers and dismal? What good a lawyer whose own sense of your pre-verdict innocence is ambivalent? What confidence is lifted being told it will all depend on the judge? I’ve always thought a lawyer who counsels activists to shut up while their prosecution is pending, lest innocence incriminate itself, is not suited to activists as clients.

Most troubling is the impression which the ACLU gives in its habitual reluctance to express enthusiasm for a case. The Denver ACLU in particular is famously overburdened, and they are inundated with solicitations for representation. Better in my opinion to decline with apologies than to leave inquirers doubting their trampled civil liberties may not have been sufficiently flattened. Free speech is either or. Restricted free speech is restricted speech. Or are we prepared to call it the 1.01 Amendment (revised for 2011)?

Behind the scenes, only hours after the fact, the ACLU can reveal that the November arrests and the policy which the city acted upon were patently unconstitutional. So how can we expedite that kind of reassurance to activists before the fact? Because of course such arrests are only serving to scare the public from even thinking about dissent. In fact this is the preemptive aim of these actions.

I count my own success at avoiding arrest, as I find myself defying authority sometimes nose to nose, with nonchalance because I know my rights. I KNOW MY RIGHTS. That argument appears to register with police officers when you say it as if you’re reassuring them, projecting a shrug and a smile, relieving them of having to rationalize acting against you. When you are confident of your rights there is nothing to compromise but practical considerations, lawful orders which the officer is able to show you are warranted.

You can retreat to a public sidewalk once a policeman has proven he had sufficient authority to make the request. A landlord who has contracted the use of his land to tenants does not have absolute say without their consultation. It’s not even reasonable of him to call in the police if no one is complaining and you are not creating a disturbance. To know these things empowers you to stand your ground when overzealous officers of the law think they can throw their weight around. How do we rekindle that essential confidence in our civil rights?

Pictured: Ted Nace with Rita, Pattie, Eric, Esther, Bill, and Loring

The other confidence-stealing factor at play in this case is an activist organization insisting that its members protest under a different name, to avoid offending members who didn’t agree. On its website, the PPJPC claims the MEPP as a subcommittee, but for the day of action and in subsequent news coverage, no affiliation.

If you consider that the Middle East Peace Project’s objective is to win over public awareness and sympathy, it seems horribly defeatist to think that you can’t even appeal to your own fellow members. Not to mention that you can’t trade on the reputation that sustains your mother organization, instead you have to emerge out of the blue, like any other holders of extremist views.

When protesters are having to excuse themselves and the unintended perhaps unwarranted commotion they’ve caused, and have to pretend to be acting autonomously because they can’t make their case to their own colleagues, it’s a recipe for what happened here. Activists kowtowed and self-censored.

And so, how to ally yourself with such impediments? Coloradans For Peace has to cut the PPJPC out of the loop so long as its decision makers are so dominated by naysayers, pretenders, NVC appeasers, and a staff which reports their every intention to the police. You can’t even discuss strategy in such a circle.

Marlon Brando’s lost Oscar speech

In 1973 Marlon Brando declined a best actor award for the Godfather in solidarity with the American Indian. Yada yada yada, only that much we remember. Something to do with Wounded Knee, but the average American might be excused for confusing the massacre of 300 Lakota in 1890, the contemporary deadly FBI-AIM confrontation, and Dee Brown’s bestseller. A new documentary Reel Injun, about Hollywood’s skewed portrayal of Native Americans, unearths Apache Sasheen Littlefeather’s incredibly poised delivery of Brando’s Oscar message.

Littlefeather was confined by time limits to present only this abbreviation, interrupted by audience booing and then simultaneous applause. Youtube has the clip, for which the transcript is below.

“Marlon Brando … has asked me to tell you, in a very long speech which I cannot share with you presently —because of time— but I will be glad to share with the press afterward, that he must… very regretfully cannot accept this very generous award.

And the reason for this being… are the treatment of American Indians today by the film industry… excuse me… and on television in movie re-runs, and also the recent happenings at Wounded Knee.

I beg at this time that I have not intruded upon this evening and that we will, in the future…our hearts and our understanding will meet with love and generosity. Thank you on behalf of Marlon Brando.”

Brando’s formal statement was released to reporters after the ceremonies.

For 200 years we have said to the Indian people who are fighting for their land, their life, their families and their right to be free: ”Lay down your arms, my friends, and then we will remain together. Only if you lay down your arms, my friends, can we then talk of peace and come to an agreement which will be good for you.”?

     When they laid down their arms, we murdered them. We lied to them. We cheated them out of their lands. We starved them into signing fraudulent agreements that we called treaties which we never kept. We turned them into beggars on a continent that gave life for as long as life can remember. And by any interpretation of history, however twisted, we did not do right. We were not lawful nor were we just in what we did. For them, we do not have to restore these people, we do not have to live up to some agreements, because it is given to us by virtue of our power to attack the rights of others, to take their property, to take their lives when they are trying to defend their land and liberty, and to make their virtues a crime and our own vices virtues.?

?     But there is one thing which is beyond the reach of this perversity and that is the tremendous verdict of history. And history will surely judge us. But do we care? What kind of moral schizophrenia is it that allows us to shout at the top of our national voice for all the world to hear that we live up to our commitment when every page of history and when all the thirsty, starving, humiliating days and nights of the last 100 years in the lives of the American Indian contradict that voice??

?     It would seem that the respect for principle and the love of one’s neighbor have become dysfunctional in this country of ours, and that all we have done, all that we have succeeded in accomplishing with our power is simply annihilating the hopes of the newborn countries in this world, as well as friends and enemies alike, that we’re not humane, and that we do not live up to our agreements.?

?     Perhaps at this moment you are saying to yourself what the hell has all this got to do with the Academy Awards? Why is this woman standing up here, ruining our evening, invading our lives with things that don’t concern us, and that we don’t care about? Wasting our time and money and intruding in our homes.?

?     I think the answer to those unspoken questions is that the motion picture community has been as responsible as any for degrading the Indian and making a mockery of his character, describing his as savage, hostile and evil. It’s hard enough for children to grow up in this world. When Indian children watch television, and they watch films, and when they see their race depicted as they are in films, their minds become injured in ways we can never know.?

?     Recently there have been a few faltering steps to correct this situation, but too faltering and too few, so I, as a member in this profession, do not feel that I can as a citizen of the United States accept an award here tonight. I think awards in this country at this time are inappropriate to be received or given until the condition of the American Indian is drastically altered. If we are not our brother’s keeper, at least let us not be his executioner.?

?     I would have been here tonight to speak to you directly, but I felt that perhaps I could be of better use if I went to Wounded Knee to help forestall in whatever way I can the establishment of a peace which would be dishonorable as long as the rivers shall run and the grass shall grow.?

?     I would hope that those who are listening would not look upon this as a rude intrusion, but as an earnest effort to focus attention on an issue that might very well determine whether or not this country has the right to say from this point forward we believe in the inalienable rights of all people to remain free and independent on lands that have supported their life beyond living memory.?

?     Thank you for your kindness and your courtesy to Miss Littlefeather. Thank you and good night.

Tony, David Barsamian says hello

The local Pikes Peak Justice & Peace Commission found a little more between the lines than they may have counted on from visiting scholar/lecturer David Barsamian. Although he preached the habitual Gandhian nonviolent civil disobedience, and putting faith in reforming electoral politics, some heresy emerged from the mix. Asked how he could cite 1984 with the authority of scripture, three times, but overlook how Orwell derided nonviolence as a tool of totalitarian control, Barsamian reminded the audience that Orwell joined the Spanish Civil War against Franco, believing that Fascist threat justified armed struggle. Barsamian then clarified that neither of the sainted NV Big 3, Gandhi, Mandela or MLK, completely eschewed violent resistance.

The PPJPC audience may be too far gone to appreciate the distinction. This was demonstrated by a rambling question/interjection by a PPJPC member luminary. Not only is the PPJPC nonviolent, it sanctions only nonviolent communication, to elaborate further, non-protest, and even non-talking about negative things. While she was thankful for David Barsamian informing his audiences, she felt what he was doing served to defeat the positive outlook necessary to float a new consciousness. There’s a growing world movement, apparently. What’s required, said she, was a concentrated focus on the positive. I paraphrase, but I lack the parochial school vocabulary.

Fortunately, Barsamian politely pooh-pooed that notion, though not with the ridicule I would have liked. Barsamian’s theme was about historical illiteracy, and while he could fault education and media for the sad state of US critical aptitude, he could offer just the usual intra-capitalism strategies of consumer boycotts and hope for turning our legislators around. For Barsamian, our task as activists is to spread understanding to the oligarchs. The corporate bosses have children too, how could they fail to recognize that the destruction of our planet will be their doom as well?

Barsamian could have found the answer in a parable he recited while illustrating another point. He asked the audience if we’d heard the story of the scorpion and the camel, a parable circulating in popular culture to vilify Islam.

The tale recounts a scorpion who asked a camel to ferry him across the river. The camel declined, certain the scorpion would sting him. After much pleading from the scorpion, the camel eventually decided to offer the benefit of the doubt, hoping his good deed would overcome the scorpion’s reputation. In the middle of the river, “Oy vay” Barsamian lampooned, the scorpion struck. Asked why he betrayed the camel, the scorpion replied “Welcome to the Middle East.”

Yes, it’s a despicable slander of the Arab, and by intentional extension, the Muslim character. Especially as you consider the original version of this tale, an ancient Sanskrit parable, which the Zionist propagandists are not foolish enough to quote in the original. When you pretend a universal truth damns an entire people, the racism is too obvious.

Originally the scorpion’s victim was a turtle, and the argument which won the turtle over was: why would the scorpion sting him in the middle of the river, were both would surely drown? After the backstabbing, the explanation given to the turtle was a moral that has enlightened mankind since ancient times, I’m certain everyone in the audience knew it. Quoth the scorpion: it is my nature.

You knew I was a scorpion when you took me on your back.

Who are the turtles today, thinking that corporations and capitalism can be turned by our altruism?

A last question came from an audience member who expressed their faltering hopefulness. In reply, Barsamian pointed to other milestones in history when dramatic relief was also more than the average person could have foreseen. 1958 in Cuba, 1788 in France and 1775 in the American Colonies. YES, thank you David Barsamian!

I’m guessing I’m going to regret not having yelled out to put the exclamation mark on where Barsamian puts his faith. Each of the events which he tenders to offer hope, was a VIOLENT REVOLUTION!

As to the cryptic title of this post. On every visit to the Springs, the indefatigable Barsamian witnesses a further disintegration of our local peace community. Not long ago, Tony caused an uproar with his boisterous complaints of the PPJPC’s misplaced piety. Perhaps David witnesses such fractures everywhere in the movement these days, the bristling tension growing between activists and the elders ascended into their delusions. Into such atmospheres Barsamian does not hold himself above the fray. To even the divisive Tony, for example he wished to convey his warmest regards.

US tells Wikileaks: “do the right thing” though deaf to the concept otherwise.

What does it mean to have the criminal US regime tell you to “do the right thing?” As if a spokesmen for a morally bankrupt war machine assert any inherent understanding of right and wrong. But this request was expressed more like “gimme you lunch money.” If you doubt this is meant more as an offer Julian Assange cannot refuse, the follow up statement explained that the US government would explore whatever other means it has to make Assange comply. It reminds me of George Bush snickering as he declined to elaborate on what eventually was exposed to be a CIA assassination program.